[2013] KEHC 1161 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO.2534 OF 1994

IN THE MATTER OF THE ESTATE OF SAMUEL RUHUA KAMUNGE alias SAMUEL RUHWA KAMUNGE (DECEASED)

JOHN GITAU RUHWA……....….……………………......………………………………APPLICANT

VERSUS

JANE GITHITHI RUHWA.……………………………………………………………….RESPONDENT

RULING

The deceased, Samuel Ruhua Kamunge aliasSamuel Ruhwa Kamunge, died on 18th November 1987. A petition was filed in 1994 for a grant of letters of administration intestate in respect of the estate of the deceased. On 13th July 2001, John Gitau Ruhwa (the applicant) and Jane Githithi Ruhwa (the respondent) were issued with a grant of letters of administration intestate in respect of the estate of the deceased. The said grant has not been confirmed because there is a dispute between the applicant and the respondent regarding how the properties that comprise the estate of the deceased are to be distributed to the beneficiaries. The applicant filed an application for confirmation of grant on 21st October 2011. The respondent filed an affidavit of protest on 1st December 2011. Counsel for the parties to this petition filed written submissions in support of their respective client’s positions. On 28th October 2013, this court heard the oral arguments made by Mr. G. Kamonde for the applicant and by Mr. Githuka for the respondent.

This court has considered the rival submissions made by the parties to this petition. The dispute between the applicant and the respondent is twofold: the first dispute is whether a property located at Geta (Plot No.1463) belonged to the deceased and whether it should be considered as part of the estate of the deceased. The second dispute is how the properties that comprise the estate of the deceased should be distributed. As regards the first issue for determination, although the respondent claimed that Plot No.1463 Geta belonged to the deceased, there was no evidence placed before the court that indeed the said parcel of land was registered in the name of the deceased. The applicant claimed that the said parcel of land was his personal property and was not part of the estate of the deceased. The respondent did not dislodge this assertion by the applicant. No title document was produced to support the claim by the applicant that the Geta property belonged to the deceased and was therefore available to be distributed to the beneficiaries of the estate of the deceased. For that reason, this court holds that the Geta property is not part of the estate of the deceased and is not therefore available for distribution to the beneficiaries of the estate of the deceased. The same shall therefore be excluded in the distribution.

The properties that shall therefore be distributed to the beneficiaries are as follows:

Kiambaa/Waguthu/64 measuring 3. 6 acres

Kiambaa/Kiambaa/T.104measuring 0. 22 acres

Loc.1/Mukarara/169 measuring 6. 5 acres

The beneficiaries of the estate of the deceased are as follows:

1st house

Hanna Wanjiru Mwangi

John Gitau Ruhwa

2nd house

Christine Wacuka Ruhua

David Kamunge S. Rugo

George Kahihu

Rachel Wairimu S. Ruhwa

William Kamau Ruhua (deceased)

Jane Githithi Ruhwa

Kahugu Ruhwa Kamunge

Gladwell Wanjiku Ruhwa (widow deceased)

The respective counsel for the applicant and for the respondent agree that the properties that comprise the estate of the deceased should be distributed in accordance with Section 40(1) of the Law of Succession Act which provides thus:

“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.”

Mr. Githuka for the respondent argued that since the 2nd widow of the deceased, Gladwell Wanjiku Ruhwa survived the deceased, then, her estate is entitled to be considered as a unit for the purposes of distribution of the estate of the deceased. Mr. G. Kamonde for the applicant is of the view that since the said widow died before the estate of the deceased was distributed then, her interest being a life interest, terminated upon her death. Having considered the rival argument made by the said counsel, this court is of the view that where a widow survives her deceased husband, and where such husband has left real estate, then such widow shall be entitled to a life interest over such real estate as provided under Section 35(1) of the Law of Succession Act. This applies to a situation where such widow has children. In the present case, it was clear that the 2nd widow of the deceased, having survived the deceased, was only entitled to a life interest to the real properties that comprised the estate of the deceased. Upon her death, her life interest over the said real properties was determined. The 2nd widow of the deceased shall not therefore be considered as a unit under Section 40(1) of the Law of Succession Actfor the purposes of distribution of the estate of the deceased to the beneficiaries.

As regard whether the estate of William Kamau Ruhua (deceased), a son of the deceased who died after the deceased, is entitled to be considered as a beneficiary of the estate of the deceased, this court holds that since William Kamau Ruhua died without leaving any children to inherit his estate, his interest in the estate of the deceased was determined upon his death. Mr. Githuka urged this court to hold that since the said William Kamau Ruhua died after the deceased, then the beneficiaries of his estate should be his brothers and sisters. Learned counsel was obviously alluding to Section 39(1)(c) of the Law of Succession Act. This court is however of a contrary view. At the time the said William Kamau Ruhua died, the estate of the deceased in this case had not been distributed to the beneficiaries. Before the properties of the estate of a deceased person are distributed to the beneficiaries, such beneficiaries hold an interest akin to an equitable interest which matures and becomes a legal interest upon the court issuing either a grant of letters of administration intestate or a grant of probate where there is a written Will. Such interest becomes legal upon the court issuing either a confirmation of grant of letters of administration intestate or a confirmation of grant of probate of written Will. In the present case, the equitable interest of William Kamau Ruhua was extinguished upon his death. This is because he died before the properties that comprise the estate of the deceased had been distributed to the beneficiaries. The story would have been different if the said William Kamau Ruhua was married or had children. If that were the case, then, his widow and or children would have inherited his entitlement from the estate of the deceased. The other scenario that would have applied is if the said William Kamau Ruhua had died after the court had confirmed the grant. In such a case, if he had left no spouse or children surviving him, then, his estate would have been inherited in accordance with Section 39(1) of the Law of Succession Act. Enough said.

In the premises therefore, the beneficiaries of the estate of the deceased shall be the two (2) children of the deceased by the 1st widow and six (6) children of the deceased by the 2nd widow. For the purposes of Section 40(1) of the Law of Succession Act, the units that shall be applied for the purposes of distributing the properties that comprise the estate of deceased is eight (8). This court therefore distributes the properties that comprise the estate of the deceased to the eight (8) beneficiaries as follows:

Kiambaa/Waguthu/64 measuring 3. 6 acres shall be divided into eight equal portions. Each beneficiary shall inherit a portion.

Kiambaa/Kiambaa/T.104 measuring 0. 22 acres shall be inherited by Christine Wacuka Ruhwa, Rachel Wairimu Ruhwa, Hannah Wanjiru Mwangi and Jane Githithi Ruhwa.

Loc.1/Mukarara/169 measuring 6. 5 acres shall be divided into four (4) equal portions which shall be inherited by John Gitau Ruhwa, David Kamunge S. Rugo, George Kahihu and Kahugo Ruhua Kamunge.

There shall be no orders as to costs.

DATED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

L. KIMARU

JUDGE