[2017] KEHC 2806 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CIVIL APPEAL NO. NO. 42 OF 2015

IRENE MABUTI GITARI...................................APPELLANT

-VERSUS-

ZACHARIA NJEGE GITARI.........................RESPONDENT

JUDGMENT

1. The appellant Irene Mabuti Gitari had petitioned for letters of administration in the estate of her deceased father Gitari Bwai Njeru in Succession Cause No. 169/2009 in Kerugoya Senior Principal Magistrate’s Court. The deceased died intestate on 26th July, 1989 as per the death certificate No. 890199, exhibited at page 4 of the record.

2. The deceased had left behind two wives Martha Wakabinga and Alice Wamutira who passed away before the succession cause was filed in the Magistrate’s Court. He was survived by six children. The house of Martha Wakabinga Gitari, the first wife had the following children:

(i) Hellen Wanjiku Mbugi

(ii) Jane Wamai

(iii) Irene Mabuti – The appellant.

The house of Alice Wamutira, the second wife, had the following children:

(i) Gladys Wawira

(ii) Zakaria Njege Gitari – The respondent.

(iii) Faith Wambui.

3. The appellant filed all the necessary documents in the magistrate’s court when she petitioned for letters of administration. She then filed summons for confirmation of grant dated 6th March, 2012 supported by an affidavit in which she proposed the mode of distribution of the estate. The summons and the affidavit are exhibited at pages 14 to 16 of the record of appeal. Her proposal was that the estate Land parcel No. MUTIRA/KATHARE/291 being the only property left behind by the deceased measuring six (6. 6) acres be shared equally between the two houses.

4. The respondent Zakaria Njege opposed the mode of distribution and filed an affidavit of protest where in he made a proposal on the mode of distribution of the estate. The affidavit of protest is at page 17-18 of the record. This prompted the court to order that the affidavit of protest be heard by way of viva voce evidence.

5. The learned magistrate heard the parties and their witnesses and gave a judgment on 12th September, 2012 wherein he allowed the protest dated 5th April, 2012 that is to say the respondent would get a bigger share than his sisters who are all married. That is to say that the land parcel No. MUTIRA/KATHARE/291 which was the only property of the deceased would be distributed as follows:

Hellen Wanjiku alias Hellen Wambugi Ngoci ¼ acre

Jane Wamai alias Jane Wamai Gathingiri ¼ acre

Irene Wambuti Gitari ¼ acre

Martha Wakabinga Gitari ½ acre – Life Interest

Gladys Kawira ¼ acre

Faith Wambui ¼ acre

Zakaria Njege Gitari 4. 85 acres

The judgment of grant are at pages 28 to 32 of the record.

6. The appellant was dissatisfied with the judgment and filed this appeal after she was granted leave to file the appeal out of time in Misc. Application No. 14 of 2014 which was before Justice Limo. The appeal raises the following grounds:

(i) The Learned Principal Magistrate erred in law in failing to distribute the estate of the deceased, GITARI BWAI NJERU, who was polygamous in accordance with the mandatory provisions of Section 40 of the Law of Succession Act, Cap 160 Laws of Kenya.

(ii) The Learned Principal Magistrate erred in law and fact in discriminating against the Appellant and her married sisters when distributing the estate of the deceased among the beneficiaries.

(iii) That the distribution ordered by the Learned Principal magistrate amounted to a violation of the Appellant’s constitutional rights as enshrined in article 27 and 40 of the Constitution of Kenya 2010.

(iv) The Learned Principal Magistrate erred in law and fact in exhibiting bias in her evaluation of the evidence tendered by the parties who testified before her.

(v) The Learned Principal magistrate judgment is unconstitutional and against the wright of evidence tendered.

7. This Court gave directions that the appeal be disposed of by way of written submissions. The appellant filed submissions through her learned counsel P. M. Muchira & Co. Advocate while the respondent filed his through his learned counsel A. N. Chomba & Co. Advocates.

8. The main issues which arise from the above grounds are failure by the magistrate to apply the law, bias and discrimination. The contention by the appellant is that the magistrate erred in law in failing to distribute the estate of the deceased Gitari Bwai Njeru who was polygamous in accordance with the provisions of Section 40 of the Law of Succession Act Cap. 160 Laws of Kenya. He thus discriminated the appellant and her married sisters in violation of Article 27 and 40of the Constitution.

9. From the judgment of the Magistrate, he entered judgment by allowing the protest by the respondent. The distribution of the estate as per the certificate of confirmed grant which I have listed above shows that the respondent was given a much bigger portion of 4. 85 Acres as against his sisters who got ¼ of acre each. In arriving at this decision, the trial magistrate stated:

“Protestor stated that his father’s wishes were that he gets a bigger portion. He states his father handed over to him the title deed in the presence of his step mother Martha.

Its also not in dispute that he is the only one who lives on that land. His sisters and step sisters are all married.

What would be fair in the circumstances? As Martha is still alive, a life interest in the land would be proper.

Would it be equitable to distribute the land amongst the houses? I think not; neither would it be mete to distribute the estate equally as the petitioner and her sisters don’t live on the land.

I find that it would be in the interest of justice if protestor gets a larger portion than his sisters who are all married. This isn’t to state that the court discriminates against the married daughters but its not lost to the court that protestor is an only son and lives on the land. He was unaware of the succession cause and wasn’t consulted by his sisters yet he lives there.”

10. The trial magistrate failed to apply the Law as provided under Section 40of theLaw of Succession Act. He discriminated the appellant and her married sisters when distributing the estate of the deceased. The deceased had two wives Martha Wakabinga Gitari and Alice Wamutira Gitari. He was therefore a polygamist. The appellant and the respondent were children of the deceased with each of them coming from one of the houses. At the time of judgment one of the wives Martha Wakabinga Gitari was alive. Section 40 (1) of the Law of Succession Act supra deals with intestate succession where the intestate was polygamous.

“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.”

The provision is mandatory. The trial magistrate considered extraneous matters and ended up discriminating the appellant and her married sisters on account of gender and marital status. Where there is an express provision of the law to be applied the magistrate lacks jurisdiction to exercise discretion on what he considers to be fair. By ignoring the mandatory provision of the law, the magistrate erred and arrived at wrong determination of the issue before him. The Court of Appeal in the case of Mwongera Mugambi Runturi & Another -V- Josephine Kaarika & 2 others (2015) EKLR held:

“With the greatest respect, such full throttled patriarchy that flies in the face of current conceptions of what is fair and reasonable cannot stand scrutiny not least because it is plainly discriminatory of itself and in its effect. It is anachronistic and misplaced notwithstanding that it was (once) the norm for a vast majority of Kenya’s communities. This Court has long accepted that a child is a child none being lesser on account of gender or the circumstances of his or her birth. Each has a share without shame or fear in the parents’ inheritance and may boldly approach to claim it. What Rono -V- Rono (2005 IEA 363 decided about the prohibition of discrimination on grounds of sex under the retired Constitution applies with yet greater force under the current progressive Constitution of Kenya 2010. See also Grace Wachuka -V- Jackson Njuguna Gathungu (2014) eKLR 100. ”

The trial magistrate circumvented the law to the disadvantage of the married daughters of the deceased. The magistrate was outright biased. Even if he wanted to give a bigger portion to the respondent, which he had no discretion to do, giving him 4. 85 acres out of 6. 6 acres exhibits bias. The petitioner and her witnesses gave evidence that the land be shared equally between the two houses as the intestate was polygamous. Unless the magistrate did not wish to apply the law, I see nothing wrong with their evidence.

11. The matter was an intestate succession. There was no proof that it was the wish of the deceased that the respondent gets a bigger portion. He ought to have proceeded under the provisions of intestate succession. The appellant has shown there was bias and the ground must succeed.

This Court has been called upon to correct that error.

12. The contention by the respondent that the ground cannot hold as the beneficiaries were recognized and allocated a share is not correct. The issue as stated above is whether the distribution was in conformity with law. From the above quoted judgment of the magistrate, it is clear that his judgment was not based on the law.

13. The Court of Appeal has dealt with the issue of inheritance at length and has come up with the principle that there should be no discrimination on the girl child and that they are equally entitled to inherit their father’s estate. In the case of MARY RONO -V- JANE RONO & ANOTHER (2005) eKLR the Court of Appeal in setting aside the distribution of the estate in the case ordered that the estate be shared out equally between the sons and daughters of the deceased. It was stated:

“The Constitution which takes hierarchical primacy in the mode of exercise of jurisdiction, outlaws any law that is discriminatory in itself or in effect. That is section 82 (1)………….

The superior court was of the view that Section 27 of the Act donates unfettered discretion to the court in sharing of the estate considering the definition of dependant in Section 29 to include the wife and children of deceased”…………” I think the discretion, like all discretions exercised by Courts must be made judicially or to put it in another way, on sound legal and factual basis. The possibility that girls in any particular family may be married is only one factor among others that may be considered in exercising the court’s discretion. It is not a determining factor………………

More importantly, Section 40 of the Act which applies to the estate makes provision for distribution of the net estate to the ‘houses’ according to the number of children in each house…………There is no discrimination of such children on account of their sex.”

The Court observed that no distinction should be made between the sons on the one hand and the daughters on the other. The Court also applied international law provisions in determining the issue of discrimination. It is now easier to apply the International Law provisions based on Article 2 (5) and (6) of the Constitution which provides:

“(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

Kenya has ratified the Convention on the Eliminationof All formsof Discrimination Against Women (CEDAW). Article -1- thereof defines discrimination against women as:

“Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic and social cultural, civil or any other field.”

Kenya subscribes to the African Charter of Human and Peoples’ Rights otherwise known as Bajul Charter (1981). The Charter calls on member states to ‘ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions! These now form part of Kenyan Law. Furthermore, the Constitution of Kenya 2010 at Article 27 prohibits discrimination on any ground including race, sex, pregnancy, marital status……….etc. The Constitution further provides that it is the supreme law of the Republic and binds all persons and all State Organs at both levels of Government.

14. Contrary to what is submitted by the respondent, a distribution of the estate which discriminates against the children of deceased on account of sex and marital status is wrong and unconstitutional. As submitted by counsel for the appellant the estate of the deceased is subject to the Law of Succession Act Cap 160 Laws of Kenya by dint of Section -2- which provides:

“Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act constitute the law of Kenya in respect of, and shall have universal application to all cases of intestate or testamentary succession to the estates of deceased persons dying after commencement of this Act and to the administration of estate of those persons.”

The Act came into force on 1st July, 1981 and as such the distribution of the estate is governed by the Act. Section 40 (1) of the Act does not give priority to any gender or sex of the child. The Court is not supposed to consider who is utilizing the land and who is not. The judgment by the magistrate was rendered after the promulgation of the Constitution of Kenya 2010 and therefore Article 3 (1) applies which provides:

“Every person has an obligation to respect, uphold and defend this Constitution.”

Courts must rise to the occasion and ensure the rights of litigants are not only respected but are firmly protected considering the history of this county where human rights of women were violated based on repugnant customary laws. Article 2 (4) of the Constitution provides:-

“Any law including customary law, that is inconsistent with this Constitution, is void t the extent of inconsistency and any act or omission in contravention of this Constitution is invalid.”

15. There was no basis for the trial magistrate to award a bigger portion to the respondent. The authority cited by the respondent, Civil Appeal No. 34/1980 has no probative value. It is a persuasive decision which does not bind this Court. The decision was made before the Law of Succession Act Cap 160 Laws of Kenya came into force. The judge relied on Kikuyu Customary Law in arriving at the decision which is not what is in issue here.

16. The Court of Appeal in binding decisions have held that there should be no discrimination on account of sex in matters of inheritance. In the case of Catherine Nyaguthie Mbauni -V- Gregory Maina Mbauni (2009) eKLR the Court of Appeal stated:

“There is no discrimination of children on grounds of their sex…….we find no basis for the submission that the wife is only entitled to a life interest under Section 40. ”

It further stated:-

“In the end, the view we take in the application of Section 40 to the estate of the deceased is that the net estate of the deceased should be shared out at the ratio of 3:5 which reflects the number of units in the two houses of the deceased.”

In the case of FRANCIS MWANGI THIONG’O and 4 OTHERS -V- JOSEPH MWANGI THIONGO (2015) eKLR it was stated:-

“Section 40 aforesaid states that it is any wife surviving the deceased that would be considered as an additional unit in the number of children………..

That ground of appeal therefore succeeds as the judge should have found that the first house had four units and the second comprising the respondents, had five units, the land should have been subdivided in the first instance along the ratio of 4:5.

The Court is stating that there was no basis for the widow being entitled to a life interest. Going by these decisions the estate should be distributed in the ratio of 4:3 that is to say; the house of Martha Wakabinga Gitari which had four daughters and the house of Alice Wamutira which had three children. This makes a total of seven since Martha Wakabinga was alive at the time of judgment and there is no indication that this may have changed. Distribution is in the ratio of 4:3. This is based on the binding authorities of Catherine Nyaguthie Mbauni supra which had similar facts; and Francis Mwangi Thiongo, supra. The upshot is that ground 1, 2 and 3 succeeds as the distribution by the trial magistrate was made in disregard of the law and in violation of the Constitution which prohibits discrimination and bias. The judgment of the trial magistrate dated 12th September, 2012 is set aside. The estate of the deceased Gitari Bwai Njeru shall be distributed amongst his children and the surviving spouse in the ratio of 4:3. These are:

Martha Wakabinga - widow

Hellen Wanjiku Mbugi - daughter

Jane Wamai - daughter

Irene Mabuti - daughter

Gladys Wawira - daughter

Zakaria Njege Gitari - son

Faith Wambui - daughter

This being a dispute involving members of the same family, I make no orders as t costs. Each party to bear its own costs.

Dated and delivered at Kerugoya this 12th day of October, 2017.

L. W. GITARI

JUDGE

Read out in open court, Mr. Rurige for the appellant, Appellant present, Respondent present. Mr. Kahiga for Mr. Chomba for Respondent.

L. W. GITARI

JUDGE

12. 10. 2017