[2014] KEHC 3813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

SUCCESSION CAUSE NO. 72 OF 2012

IN THE MATTER OF THE ESTATE OF LABAN K. WAITHAKA (DECEASED)

REGINA MUTHONI KAMAU ............................................. 1ST PETITIONER

JOSEPH WAITHAKA KAMAU .......................................... 2ND PETITIONER

JUDGMENT

The deceased, Laban K. Waithaka died in 1979 leaving behind two houses. The first wife passed away before the deceased, leaving behind ten (10) children. The 2nd wife, Regina Muthoni has three (3) children. The administrators of the estate are, Joseph Waithaka Kamau, a son of the deceased and the 2nd wife. The administrators applied for the confirmation of grant vide Summons dated 2nd January, 2013. It is at the time of the hearing of the summons that court directed that the estate be distributed amongst the beneficiaries because they were all adults. Unfortunately, the dependants could not agree on the mode of distribution of two properties comprising part of the estate.

Parties were directed to file affidavits and submissions on how they wished the properties be distributed. The respective counsel opted to wholly rely on affidavits. Learned counsel Mr. Ngigi for the 1st house informed the court he would rely on an affidavit filed by Joseph Waithaka. He submitted that the 1st house has ten (10) heirs while the 2nd has four (4). He said that the 2nd wife was married three years before the death of the deceased at which time most of the properties had been purchased. He thus requested the court to uphold an equitable distribution of the estate.

Mrs. Chumba, learned counsel for the 2nd house relied on three affidavits sworn by Regina Kamau, Nahashon Karani and Peter Waithaka Kamau. According to M/s. Chumba, the properties were distributed not according to the houses but directly to the heirs, and so it is immaterial what number of children each house had.

According to the 1st widow, she spent a lot of money recovering the estate for purposes of distribution. For this reason, it is her case that she ought to be rewarded with the residential plot – block 9/17/390.

It was further submitted that the 1st wife died before the deceased and so the 2nd wife raised all her children who were below 18 years. This further justifies, why she should be rewarded with the residential plot.

The 2nd wife is further willing to cater for the stamp duty which is considered as liability.

She stated that the rest of the land comprises two plots. One measures six (6) acres that touches the tarmac. This land should be divided between the two adminstrators equally. The other plot measures 13 acres and should be sub-divided among the other sons of the deceased equally save for the administrator, John Waithaka.

The 2nd wife further stated that another property, being land No. 9/17/136 was apportioned to the deceased's grandchild, one Dorcas Waithera Kamau. Since her whereabouts is unknown, it should be registered in the joint names of the administrators to hold for her in trust.

In rejoinder, Mr. Ngigi submitted that the deceased died way back in 1979 and before the cause was filed, the estate was in the name of Regina Kamau single handedly. For this reasons, she did not deserve any compensation. He stated that distribution could only be done as per Section 66 of the Law of Succession Act after payment of all liabilities. That further Regina Kamau had not demonstrated that she had paid any liabilities. He submitted that the elders agreed that the six (6) -acre plot should be subdivided between the children named Waithaka in each respective house, namely, Joseph Waithaka Kamau and Peter Waithaka Kamau. The balance of the 13 acres should thereafter be distributed amongst the rest of the sons. He further stated that the 2nd wife did not raise most of the children of the first house. They were raised in children's homes under great suffering. Hence, the 2nd wife did not deserve any compensation.

Basically, the argument raised by the 2nd house is that their mother should get Plot No. 390 because she had done so much to preserve the estate of the deceased. The argument is that the sale of the said plot shall be prejudicial to her as she deserved the favour of being a surviving spouse who had taken care of the estate. But on the part of the first house, there is no prove that the 2nd wife deserved any favour.

A summary of the respective affidavits and oral submissions demonstrate that apart from Plot NO. 390, the only other contentious plot is the Lorien Farm. In the respect of the latter plot, it is whether the six (6) acres touching the tarmac should be given to Regina Muthoni and Joseph Waithaka, each to take three (3) acres or the said six (6) acres should be apportioned between the persons named Waithaka in the respective houses.

Because of this conflict, when parties appeared in court on 17th June, 2013 they were asked to file a further affidavit on a mode of distribution agreeable by all beneficiaries. When they returned to court on 30th September, 2013, they informed the court through Joseph Waithaka Kamau that they had agreed on how they wished to have the properties distributed. They referred the court to a Further Affidavit filed by the said Joseph Waithaka Kamau on 21st November, 2013. At this point only Plot No. 390 was contentious. This is the property which one of the administrators Regina Muthoni states should be given to her as a reward for raising the children of the first house and for taking care of the estate of the deceased. Incidentally, representatives from the 1st house who were present stated that Plot No. 390 should be sold to cater for liabilities while those from the 2nd house said it should be given to their mother, Regina Muthoni.

Although the court directed that other affidavits be filed by the parties who objected to the proposed mode of distribution contained in the Further Affidavit sworn by Joseph Waithaka Kamau on 20th November, 2013, this was not done. Parties were by this date, 30th September, 2013 not represented by the respective counsel. Immediately after this date, they instructed the said advocates on record. The advocates relied on the affidavits that were already on record. As such, nothing was added to the earlier submissions the parties had made before court on 30th September, 2013.

Having said the above, the court is alive to the provision of Section 40 (1) of the Law of Succession Act as far as the distribution of an intestate estate of a polygamous is concerned. For avoidance of doubts, I duplicate the same as follows:-

“40 (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 ouse, but also adding any wife surviving him as an additional unit to the number of children.”

But again, even when the law must be strictly applied, where parties have agreed on how they wished to settle their dispute without the interference of the court, the court should be very hesitant to disturb that agreement. This is buttressed by the spirit of the provision of Article 159 (1) (c) of the Constitution, that in exercising judicial authority, courts and tribunals shall be guided by the following principles, inter alia, “alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted ….....” Having regard to this noble principle, it is my view that I should not interfere with what the parties have already agreed should be the mode of distribution of the estate.

This agreed mode of distribution is per the aforesaid Further Affidavit of Joseph Waithaka Kamau with the exception of the contentious Plot No. 390. In regard to this plot, Regina Muthoni has not adequately demonstrated that she deserves the favour of the additional property. There is no evidence that she paid any liabilities of the estate from her own money or properties. There is also no evidence that she single-handedly raised the children of the first house after the death of their mother. Indeed, some of them are bitter that they had to be brought up in children's homes, an assertion Reginah Muthoni did not object to. In the instance, it would be very unfair to appotion her this plot on grounds that have not been substantiated. And since it is agreeable that there are outstanding liabilities, the easy target to fall back to, to meet these liabilities must be this plot which each beneficiary feels should not be unjustly given to somebody. Furthermore, no distribution of an estate should be done before liabilites are fully paid.

In the end, and taking into account the views of all the parties, I hold as follows:-

(a) The estate of the deceased Laban Kamau alias Laban K. Waithaka (deceased) shall be distributed as per the schedule of distribution outlined in paragraph 27 of the Further Affidavit sworn by Joseph Waithaka Kamau on 20th November, 2013 with the exception of paragraph 11 thereof.

(b) Plot No. Eldoret Municipality Block 9/17/390 shall be sold by the two administrators. The proceeds of the sale shall be used to pay any debts, rents or rates on all other parcels of land registered in the deceased's name.

(c) Any balance of the proceeds of sale as set out in (b) above shall be distributed equally among all the fourteen (14) dependants (beneficiaries) of the deceased's estates.

(d) A Certificate of Confirmation of the Grant shall be drawn in terms of orders (a), (b) and (c) above.

(e) Each party shall bear its own costs of this cause.

DATED and DELIVERED at ELDORET this 8th day of July, 2014.

G. W. NGENYE - MACHARIA

JUDGE

In the presence of:

Mr. Ngigi Mbugua for the 1st house

Mr. Nyandoro holding brief for Mrs. Chumba for the 2nd house