[2013] KEHC 561 (KLR)

No. 147/2013

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 950 OF 2012

IN THE MATTER OF THE ESTATE OF WILLIAM

NDWIWA MUANGE ALIAS WILLIAM MUANGE

1. JOHN MBONDO )

2. PRISCILLA KAVINI NDWIWA)…………. PETITIONERS

3. KENNEDY MAWIOO )

RULING

William Ndwiwa Muange (the deceased) died on an unknown date in the year 1998. Subsequently his death was registered on the 28th February, 2011. The deceased died intestate. He was polygamous. A grant of letters of administration was issued to John Mbondo Ndwiwa, Priscilla Kavini Ndwiwa and Kennedy Mawioo Ndwiwa who represented each of his three houses. On the 12th October, 2012 according to the affidavit in support of the petition for letters of administration, the only asset the deceased had was Land Parcel No. Makueni/Kikumini/61.

On the 22nd April, 2013, an application for confirmation of the grant was filed. In an affidavit in support of the application purportedly sworn by the three petitioners but signed by only one person it was proposed that the asset comprising of 39 acres of land be subdivided as follows:-

2 acres be registered in the joint names of Priscilla Kavini Ndwiwa and Kennedy Mawioo Ndwiwa.

37 acres be registered in the names of Priscilla Kavini Ndwiwa, Kennedy Mawioo and John Mbondo Ndwiwa.

The 1st Petitioner (John Mbondo) filed an affidavit of protest. He averred that the deceased had 3 wives and concubines; He had two (2) assets, Makueni/Kikumini/61 measuring 30 acres and Makindu/Kalii/597 measuring 25 Hectares; prior to 1968 the deceased with his three (3) wives and their children lived on parcel of land Makueni/Kikumini/61; in 1968 he settled his second family, (the 3rd Petitioner and her children) on Makindu/Kalii/597; in the year 1998, the 2nd Petitioner was registered as the owner of Makindu/Kalii/597. He thereafter stated that the 3rd Petitioner and her children should not inherit Makueni/Kikumini/61.

Further, he stated that in the year 1995 the deceased subdivided Makueni/Kikumini/61 between him (1st Petitioner), his mother and the 3rd wife; and according to Kamba Customary Law children born to the 3rd wife and her concubines could only inherit property from the 3rd wife’s 16 acres but not the deceased. The two (2) families living in Makueni/Kikumini/61 are settled in their respective portions of land.

In answer to the protest the 2nd and 3rd Petitioners stated that the deceased owned only one asset namely Makueni/Kikumini/61. Parcel No. Makindu/Kalii/597 did not belong to the deceased as it belonged to the 3rd Petitioner.

Further, they stated that prior to his demise the deceased subdivided Parcel No. Makueni/Kikumini/61 equally amongst his three (3) wives in the presence of his wives, children and the Akitondo clan members. Sisal plants were planted to mark boundaries but the 1st Petitioner uprooted them. They called upon the court to confirm the grant of letters of administration intestate in accordance with the proposed mode of distribution set out in the affidavit in support of the application.

At the hearing, in his testimony the 1st Petitioner stated that the deceased having been a businessman owned property, parcel of land No. Makindu/Kalii/597 inclusive. Thereafter, in the year 1968 the deceased settled the 2nd Petitioner on the said land. He denied an allegation that parcel No. Makueni/Kikumini/61 was subdivided into three. Thereafter the deceased became sick. He met his medical expenses. On being discharged from hospital, he gave him a portion of his land in reciprocation. The remaining parcel was given to his mother and Sabina where she settled with her two (2) concubines and their children who are represented by the 3rd Petitioner. He now occupies his portion that he was given by the deceased and the portion that belonged to his mother, now deceased.

On being cross-examined he stated that his father made a decision to leave title deeds for all parcels of land in custody of the 3rd Petitioner. He stated that the deceased only subdivided Makueni/Kikumini/61 but not Makindu/Kalii/597 as he had already given it to the 2nd Petitioner.

The Protester called PW3, Muia Kyuli a witness who was only aware of the Makueni/Kikumini/61 as the deceased’s property. It was his evidence that he was present when the said parcel of land was subdivided and the Protester/1st Petitioner given 6 acres of land.

Testifying on behalf of the Respondents, the 3rd Petitioner Kennedy Mawioo Ndwiwa stated that he was present when the deceased summoned all his family members and subdivided the land into three (3) portions which he gave to the three wives. Sisal plants were planted on boundaries set but the 1st Petitioner/Protester uprooted them. He also damaged a house constructed on the 2nd Petitioner’s portion of land. He said that the deceased entrusted him with title deeds and instructed him to divide the land amongst his three (3) wives. After the death of the deceased, he called all family members. The chief presided over the meeting. The chief investigated and found Makueni/Kikumini/61 to be the only asset the deceased left behind.

Joseph Musyoki, a son to the 1st Respondent/2nd Petitioner said that after the deceased divided the Makueni land amongst his three (3) wives, the 1st Petitioner uprooted the boundaries set and demolished the house that had been constructed on the 2nd Petitioner’s portion. His brother who was to stay in the house ran away.

Katheke Ndwiwa and DW4 Musau Ndwiwa from the 2nd house of the deceased and the 2nd Petitioner confirmed in material particulars what the Respondent and his other witness stated.

Issues for determination

Whether Makindu/Kalii/597 forms part of the deceased’s property

Whether the 2nd Petitioner and her household are entitled to parcel of land No. Makueni/Kikumini/61.

All parties are in agreement that the deceased had three (3) wives. Two (2) of whom he sired with biological children and one who got concubines that sired him children though from other men following Kamba Customary Law. Although in the affidavit in support of Petition for letters of administration, names of other children were omitted. Evidence adduced in court established that the first wife of the deceased Sabeth Munyiva Ndwiwahad only one son the 1st Petitioner herein. The 2nd wife, Priscilla Kavini Ndwiwahad three (3) children while the 3rd wife, Sabina Kongu Ndwiwa had two (2) concubines who sired some 12 children. I have noted that only two (2) names were included in the affidavit in support of petition for letters of administration intestate.

Looking at the same affidavit which was sworn by the Protestor/1st Petitioner, the 2nd Petitioner and 3rd Petitioner respectively, the only asset indicated is Land Parcel no. Makueni/Kikumini/61. Per the evidence adduced, it is only the 1st Petitioner who stated that Makindu/Kalii/597 belonged to the deceased. PW3, an elder who was purportedly present when the deceased subdivided the Makueni property said he was not aware of the Makindu property.

Per the Official Search Certificate produced in respect of Parcel No. Makindu/Kalii/597, the property that measures 11. 25 Hectares belongs to Priscilla Kavini Ndwiwa. The date of registration was 9th September, 1998. Per the evidence of the 1st Petitioner, the deceased died on 10th November, 1998. The death certificate issued indicate the year of death. It does not show the date or month of the deceased’s demise. There is uncertainty as to when exactly the deceased died.

However, the evidence adduced by 2nd Petitioner that she acquired the land through her own means was not controverted. If from the outset the 1st Petitioner believed Property Makindu/Kalii/597 belonged to the deceased it could have been included in the list of assets. Without proof that the aforesaid property belonged to the deceased it cannot be eligible to distribution. In the premises the only asset of the deceased’s Estate that is available for subdivision is Makueni/Kikumini/61.

Makueni/Kikumini/61 is said to be 39 acres. Out of the said acres the 1st Petitioner claims 6 of the acres belong to him as he was given by the deceased. This was in consideration of his good gesture of having taken care of his medical expenses. It was stated that three (3) elders were present, two (2) have since died. The only surviving one is PW3.

In this matter the deceased died intestate. There was neither an oral nor a written will left by him. However the 1st Petitioner produced some written documents purportedly written in year 1995. Per the translation the document states that the deceased bequeathed his land to the 1st and 3rd wife and also gave part of it to the 1st Petitioner as a gift. This particular document the 1st Petitioner/Protester sought to rely on is not specific on what properties it refers to. The document has a signature allegedly appended by the deceased but it was not attested by any witnesses. The document could only pass to be a wish or intention of the deceased if it had been attested by other people. It therefore lacks characteristics of a will. (See Section 11(c) of the Law of Succession Act).

The 2nd document adduced bequeaths the 1st Petitioner 6 acres of land. It was witnessed and attested by a village elder, clan elder and the family members including a John Willy and the 3rd wife Sabina Kongu.The document bequeaths the 1st Petitioner 625 feet in length and width of 670 feet at the back and width of 300 feet at the front. These are dimensions deemed to have been uttered by the deceased. However, it is not clear to which land it refers to. The two (2) documents produced are vague and cannot be relied on by this court.

The deceased was survived by three (3) wives and their children. Section 40 of the Law of Succession Act provides:

“(1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38”.

Following the provisions of the law it is just that the property be divided equally amongst the three (3) houses. I wish to point out that the 3rd Petitioner seemingly wants to lock out other beneficiaries of the 3rd household. Their interests must be taken into consideration.

Parties are directed to file a list of all beneficiaries. This being a family dispute, there shall be no orders as to costs.

DATED, SIGNED and DELIVEREDat MACHAKOS this 10THday of DECEMBER, 2013.

L.N. MUTENDE

JUDGE