[2022] KEHC 15049 (KLR)

In re the Estate of Mallion Wangechi Theuri (Deceased) (Probate & Administration Appeal 18 of 2019) [2022] KEHC 15049 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15049 (KLR)

Republic of Kenya

In the High Court at Nyeri

Probate & Administration Appeal 18 of 2019

M Muya, J

November 2, 2022

N THE MATTER OF THE ESTATE OF MALLION WANGECHI THEURI (DECEASED) TERESA NJERI MUTURI ..................................1ST APPELLANT SUSAN GATHONI THEURI ................................2ND APPELLANT MARGARET WANGARI THEURI ......................... 3RAPPELLANT JOYCE WANJIRU THEURI ................................4TH APPELLANT VERSUS CECIDA WAMBUI TITUS ......................................RESPONDENT

(The appellants were aggrieved by the decision and filed the instant appeal.)

Judgment

1. The appellants herein are daughters to the late Mallion Wangechi Theuri (herein referred to as the deceased) while the respondent is their sister-in-law, being the wife to their late brother, Titus. The deceased left behind land parcel No LR Othaya/Kihugiru/2098 (herein referred to as the subject land) that she had inherited from her late husband who was the father to the appellants. Upon the death of the appellants` mother the respondent in her capacity as daughter-in-law filed a succession cause and proposed in her summons for confirmation of grant that the subject land be distributed equally between herself and the 4 appellants. The appellants filed a protest on the ground that the subject land was originally part of and parcel No Othaya/Kihuguru/364 which was owned by the late appellants` father. That the appellants` father sub-divided the said land into 3 portions and transferred one portion measuring 6. 6 acres to the respondent as wife to his son; another portion of 3. 6 acres to his unmarried daughter, the 4th appellant and the third portion of 3 acres was left in his name, which land is the subject land herein which transmitted to the deceased herein after her husband died. In their protest the appellants contended that the respondent was not entitled to the share of the subject land because she had already been given her share of the estate by her father-in-law. That it is the 1st, 2nd and 3rd appellants who were entitled to the land as they had not benefited from their fathers` land when he shared it out. That before the deceased died she had obtained consent of the Land Control Board and told the board that she wanted to sub-divide the land to the 3 appellants. The 4th appellant supported her sisters on their preferred mode of distribution of the land.

2. After the appellants filed a protest, the respondent filed a further supporting affidavit stating that she has lived on the subject land for over 40 years and built a house thereon in the year 1971. That the portion where the house stands was bequeathed to her by her parents-in-law. That she was claiming the portion where the house stands and she had no objection if the rest of the land went to the appellants. The appellants opposed those prayers.

3. After a full hearing the trial magistrate held that the respondent was entitled to that portion or area of the suit land where her house and other structures are standing, upon determination of which the rest was to be shared equally by the 1st, 2nd and 3rd appellants. Thereafter a surveyor visited the land and determined the portion where the respondent`s house is standing to be 0. 04 Ha. The court then confirmed the grant to that end.

4. The appellants were aggrieved by the decision and filed the instant appeal. The grounds of appeal are that:a.Although a party is bound by her/his pleadings, the honourable court erred in ignoring the respondent’s distribution proposal contained in the summons for confirmation of grant and relied on a further affidavit and her evidence in which totally contradicted the summons which was never withdrawn;b.The learned magistrate erred in not requiring the respondent to opt whether to rely on summons for confirmation of grant or what she referred to as a “Further affidavit.”c.The learned magistrate erred in law and in fact when she categorically stated that the deceased did not leave any written or oral will and yet the day she passed on she told the entire Othaya Land Control Board how her land was to be shared out.d.Before the Land Control Board the deceased had taken the first, second and third appellants and told the members that she was sharing her land among the three which amounts to an oral will.e.The learned magistrate erred in law and in fact in stating that the issue the respondent was raising was not determined when the Land Control Board granted consent to sub-divide the land among the three beneficiaries and she was not among them.f.The learned magistrate was wrong in invoking article 10 of theConstitution without realizing that the respondent was already a beneficiary of 6. 6 acres from the same estate whereas the other siblings were getting much less.g.The learned magistrate erred in law and in fact in attaching a lot of importance to the house and yet if it was that important, it could have been allocated to where the respondent’s 6. 6 acres was located.

5. The appeal was disposed of by way of written submissions by the advocates for the appellants, Kebuka Wachira & Co Advocates and those of the respondent, Machirah & Muriki Co Advocates.

6. The appellants submitted that the respondent filed her summons for confirmation dated May 23, 2017 and stated that the suit land ought to be shared equally between the five children, but after receiving their affidavit of protest dated September 15, 2017, she filed a further affidavit and stated that she only wanted the portion where she built her house but she had no objection to the rest being shared between the protestors.

7. The appellants submitted that the summons for confirmation where the respondent stated that she wanted the land to be shared out amongst the five children and her further affidavit where she wants a portion where her house is are contradictory prayers. She ought to have withdrawn one and continue with the other. The appellants contend that the magistrate erred by choosing one and ignoring the other and a party is bound by its pleadings. Thus, if they are contradictory, the court ought to dismiss them both.

8. The appellants submitted that the respondent is not entitled to the portion of land where her house is. This is because her house was built in 1971 before the land was sub divided. Upon sub-division she had a choice to request their father to locate her 6. 6 acres piece of land where her house is but she chose the land to be located away from the house. The appellants claim that the respondent is being cunning as she thought that by claiming a portion where her house was located, she was getting an additional piece of land.

9. The appellants further submitted that when the deceased appeared before the land control board on May 9, 2012, she told the board that she wanted to give the three appellants her land as their father did not apportion any land to them. Further, a member of the board testified confirming the same but the court chose to ignore that piece of evidence. That the respondent in her evidence stated that her mother in law had told her that she was to give the three appellants the land her husband left her with. As such, the deceased’s wishes are well known.

10. The appellants submitted that there is no hardship in re-locating the house as this would solve all other issues that may arise in the future. There would be no discrimination against the respondent if she was allowed to move her house to her land which is next to the suit land. As such, the appellants pray that their appeal be allowed with costs.

11. The respondent on her part submitted that even before the initial sub-division of the original title deed into three portions by her late father-in-law, the father-in-law had set aside a homestead area where he showed the respondent and her husband (deceased) where they could build their house in 1971. The respondent further submits that they were the only ones in the homestead and she and her husband built their home just next to the homestead of their late parents since that is the portion they had been shown to build. After the respondent and her late husband built their permanent home, their deceased father-in-law sub-divided the land and gave them 6. 6 acres of the land.

12. The respondent submits that the appellants’ argument that the land control board consent forms depicted the last wishes of the deceased does not have any backing in law. This is so because the forms do not indicate who was to be bequeathed the three portions and at the time of the deceased’s passing, she was still living on the said parcel and her house was still on the said parcel. The respondent further contends that this leaves a lot of unanswered questions of what would happen to the deceased’s house before sharing out her portion of the land.

13. The respondent relies on section 41 and 42 of the Law of Succession Act which in their interpretation requires equal distribution among all the children of the deceased while taking into account any gifts or settlements that may have been made by the deceased during his life time. However, that the respondent is not interested in her equal portion but is only interested in the portion where her permanent house is built. She contends that the interpretation to be given to section 42 of theAct is that where the deceased has settlement any property during his lifetime the property is not subject to disruption after his demise but will be taken into account when undertaking distribution. She further contends that section 42 of the Act seeks to respect the wishes and decisions arrived at by the deceased during his lifetime. In the event any person feels aggrieved with such a settlement, he had an opportunity to raise the issue with the settlor whilst he was still alive. Therefore, that the law respects how a person decides to deal with his property during his lifetime.

14. The respondent further submits that the fact that the deceased had not taken any steps to evict her or move her elsewhere is a clear indication that the portion where the respondent’s house was built was given to her and her husband during the lifetime of the deceased. As such, the appellants had every opportunity from the year 1971 to challenge the said gift. The respondent thus submits that the gift remains unchallenged and hence the court cannot interfere with such a gift.

15. The respondent submits that whereas the appellants kept referring to the estate of their late father, the present succession cause relates to the estate of their deceased mother and hence like any other child, the respondent was well entitled to inherit from the estate of her mother-in-law considering that she lives on that piece of land.

16. The respondent contends that the trial magistrate was right to rely on article 10 of theConstitution which promotes principles of human dignity, equity, social justice, equality among others and submits that having considered the amount of time the respondent had lived on the said parcel of land since 1971 with the consent of the deceased and having no other place to call home and considering that the respondent is also entitled to inherit from her deceased mother in law’s estate, it would only be just and fair that she continues occupying her permanent house. The respondent relies on the case of In Re Estate of Francis Mwangi Mbaria (Deceased) [2018] eKLR to support her contention.

17. The respondent contends that the appellants’ proposal would be unjust and would create an untidy situation which will render her destitute considering now that she is an elderly woman with no income.

Analysis And Determination - 18. This being a first appeal the duty of the court is as was set out inSelle and another v Associated Motor Boat Company Ltd & others [1968] 1 EA 123 that:“…..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

19. It was also held in Mwangi v Wambugu [1984] KLR 453 that an appellate court will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence; or where the court has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence.

20. I have considered the grounds of appeal, the grounds in opposition thereto and the submissions by the advocates for the parties. The issues for determination are:(1)Whether the deceased made an oral will.(2)Whether the deceased made a gift to the respondent.(2)How should the estate be distributed.

Whether There Was An Oral Will- 21. The appellants contended that the deceased had made an oral will that she wanted the subject land to go to the 1st, 2nd and 3rd appellants. It was contended that the deceased appeared before the Othaya Land Control Board and informed the board that she wanted to give her land to the appellants. It was submitted that this amounted to an oral will. That the deceased obtained a consent of the Land Control Board to sub-divide the land into 3 portions but she died before she could transfer the land to the appellants. The question then is whether the deceased made a valid oral will before the Othaya Land Control Board.

22. The appellants called a member of the Land Control Board PW4 as a witness that the deceased made an oral will before the board that she wanted to give the suit land to 3 of the appellants. PW4 told the court that the deceased appeared before the board and told them that she wanted to sub-divide her land into 3 portions to give it to 3 of her daughters who were in her company. The board gave the consent.

23. The 1st appellant (who was PW1 in the case) stated in her evidence that she and the 2nd and 3rd appellants were in attendance of the meeting of the Land Control Board. That the respondent and her son were in attendance and did not raise any objection to the deceased`s application. That the board gave its consent. She further said that the deceased had three days before the meeting of the board told the respondent that she wanted to give the subject land to 3 of her daughters. That the respondent objected and said that she wanted a portion of the land.

24. The 4th appellant (PW2 in the case) stated in her evidence that her mother had told them that she wanted to sub-divide her land and give it to those who had not been given land by their father. That the deceased applied for the consent of the Land Control Board to sub-divide the land into 3 portions. That they attended the meeting of the board. The respondent attended the meeting and raised an objection to the sub-division of the land into 3 portions. The board however gave its consent.

25. The respondent in her evidence stated that she attended the meeting of the Land Control Board on May 9, 2012 in the company of her son. That the deceased told the board that she wanted to give her land to 3 of her children. That she, the respondent, objected and told the DO that she had a house on the land. That the DO told her to raise the issue in the second board meeting. That the deceased died before they could attend the second board meeting. The respondent however stated in cross-examination that the deceased did not tell the board as to who was to get the 3 portions. That the deceased had however previously told her that she would give her children land but she had told the deceased that the area occupied by her house should be left out.

26. The letter of consent of the Land Control Board Pexh2 indicates that the consent was given on May 9, 2012. The deceased herein died on May 17, 2012 which was about a week after the consent was given.

27. The trial magistrate considered whether the deceased had intended to give land to three of her children and held as follows:It has been argued by the protestors that the deceased had intended to share the land between her three daughters who were not given any land by their deceased father but the consent does not specifically state as such. As at now, we cannot tell with certainty that the deceased would have transferred the three portions to her daughters as the protestors seem to argue otherwise this court will be relying on conjecture rather than on fact. Such an intention would have been fulfilled upon transfer but no one can tell for sure whether the deceased would have done so finally as she died before affecting the transfer.

28. The magistrate thereupon held that there was no evidence that the deceased had left any oral or written will over the inheritance of the subject land.

29. Section 3(1) of the Law of Succession Act defines a will as follows:“will" means the legal declaration by a person of his wishes or intentions regarding the disposition of his property after his death, duly made and executed according to the provisions of part II, and includes a codicil.

30. Section 9 of the said Act provides for the requirements of an oral will and states as follows:No oral will shall be valid unless:a.It is made before two or more competent witnesses andb.The testator dies within a period of three months from the date of making the will.

31. While discussing the requirements of a valid oral will, Musyoka, J in Re Estate of Evanson Mbugua Thong’ote (Deceased) [2016] eKLR stated that:An oral will is made simply by the making of utterances orally relating to disposal of property. In asserting whether the deceased had made a valid oral will, it needs to be considered first whether there was an utterance of the will. The question being whether there was an oral utterance of the terms of the will. The honourable judge continued…..The other consideration is that the utterance ought to be made in the presence of two or more persons.

32. Going by the definition of what amounts to be a “will” as stipulated above, a person alleging that a deceased person made a will must show that there was a declaration by that person of his wishes or intentions regarding the disposition of his property after his death. The appearance of the deceased in the instant case before the Land Control Board was part of the legal process of transferring the land to her daughters. There was no declaration made before the board of the intentions of the deceased herein regarding the disposition of her property after her death. Her intention was only to transfer the land to her daughters which did not materialize after she died before doing so. Her utterances before the board cannot therefore be construed as a will as there was no declaration before the board as to who was to inherit her land after she died. Similarly, the mere fact that the deceased told her daughters that she wanted to sub-divide the land to them did not amount to a will as the words were not uttered in the context of disposing of the property after her death. It is therefore my considered view that the issuance of the consent of the Land Control Board does not prove that there an oral will by the deceased. I am therefore in agreement with the trial magistrate that there was no evidence that the deceased left an oral will on the disposition of her property after her death.

Whether The Deceased Made A Gift Inter Vivos To The Respondent- 33. The bone of contention is whether the respondent ought to inherit from the land where she has built her permanent house. According to the appellants, the respondent is not entitled to inherit from the estate because she was already allocated 6. 6 acres by their father during his lifetime. The appellants contend that it was their mother’s wish that the said parcel be divided into three portions for the three appellants to inherit.

34. The respondent on the other hand contends that she is entitled to the portion where her house stands as she built it in 1971 and since then the deceased never moved her or evicted her from the said premises. It was argued that since the deceased never at any time tried to evict her from the portion where the house stands is clear indication that the portion where the house stands was given to her by the deceased as a gift during her lifetime. That this ought to be regarded as a settlement that the deceased did during her lifetime. Therefore, that the court cannot now disrupt or interfere with the settlement but can only take it into account when distributing the estate.

35. The argument by the petitioner is therefore that the deceased made a gift inter vivos (gifts between living persons) to her when she was a life. The question then is whether the deceased made such a gift. In Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] eKLR Nyamweya, J (as she then was) stated as following :“In law, gifts are of two types. There are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:…For gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of 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 must be complete for the same to be valid.”

36. Gifts inter vivos are provided under section 42 of the Law of Succession Act where it is provided that:-“Where-(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or(b)property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.”

37. In Micheni Aphaxard Nyaga & 2 others v Robert Njue & 2 others [2021] eKLR, Gitari, J noted as follows:“The characteristics of the gifts inter vivos are that they are made and settled during the lifetime of the deceased and have been identified, awarded and settled for the person to whom it has been given. It is a gift made to a beneficiary when the deceased was alive and is considered when distributing the net intestate estate so that person who received it may be considered as having received his share and may reduce or diminish any entitlement to the net intestate estate. The gift which is transferred and settled for the beneficiary during the life-time of the deceased, will not form part of his estate but it will be taken into account in determining the share of the net intestate estate finally accruing to that beneficiary.”

38. In Halsburys Laws of England 4th edition volume 20(1) at paragraph 67 it is stated as follows:If a gift is to be valid the donor must have done everything which according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do.

39. In the instant case the deceased did not transfer to the respondent the portion of land where the house of the respondent is standing. There was no deed to that effect. The respondent is relying on the mere fact that she has occupied the place for a long time and the fact that the deceased did not try to evict her to argue that was an indication of a gift. In law that does not connote a gift. There was thereby no evidence that the deceased made a gift inter vivos to the respondent on the portion where her house is standing.

How The Estate Should Be Distributed- 40. The question that arises is whether the trial magistrate erred in finding that the land parcel LR Othaya/kihungiru/2098 ought to be shared between the three appellants and the respondent. In reaching the decision that the respondent was entitled to the portion where her house stands the trial magistrate considered the fact that the respondent had occupied the place for a long time and that the deceased had not tried to evict her from the place. That it was inequitable and against human dignity for the respondent to be removed from the place she has called home for a long time. The trial court was in reaching that decision guided by the principles set out in article 10 of theConstitution of Kenya, 2010 that includes principles of human dignity and equity. The court also considered the fact that the proceedings in this matter relate to the estate of Mallion Wangechi Theuri and not that of her late husband.

41. It is not in dispute that the deceased had five children. Section 38 of the Law of Succession 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.”

42. As observed above section 42 of the Law of Succession Act requires that when the court is distributing the estate of a deceased person it ought to take into account any settlement previously done by the deceased. The estate herein relates to the estate of Mallion Wangechi and not that of her late husband. The deceased herein did not make any settlement to the respondent just as she did not make any to the appellants. The estate should therefore be distributed in accordance with section 38 of the Law of Succession Act which envisages equal distribution of the estate between the five children of the deceased. The respondent was claiming the share of her late husband. She was at liberty to relinguish any part of her entitlement. As she only wanted the portion where her house stands, I find no error in the manner the trial court distributed the estate.

43. The upshot is that the appeal lacks merit and is dismissed accordingly. This being a family matter, each party is ordered to bear its own costs to the appeal.

SIGNED THIS 14TH SEPTEMBER 2022. JN NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2NDDAY OF NOVEMBER, 2022. By:HON. JUSTICE M. MUYAJUDGEIn the presence of:Wachira for appellantsMacharia for respondentCourt Assistant: Kinyua30 days R/A.