[2022] KEHC 13939 (KLR)

Josiah v Nyaga (Civil Appeal 34 of 2021) [2022] KEHC 13939 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13939 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 34 of 2021

LM Njuguna, J

October 3, 2022

Between

Herbert Mbogo Josiah

Appellant

and

John Njue Nyaga

Respondent

(Appeal from the Ruling of Hon. Nyakweba SPM delivered on 07. 09. 2021 in Embu Succession Cause No. 296 of 2018)

Ruling

1. The appeal herein arose from the ruling of Hon Nyakweba SPM delivered on September 7, 2021 in Embu Succession CauseNo 296 of 2018, in which, the appellant filed for summons for confirmation of grant dated September 17, 2019.

2. The appeal is premised on the fact that the deceased herein had two families and wherein the 1st house comprises of five children while the 2nd house comprises nine children. That the only asset comprising the estate of the deceased is LR Ngandori/ Kiriari/1416 and that upon the demise of the deceased, the petitioner (respondent herein) filed summons for confirmation of grant in which he proposed a mode of distribution which was disputed by the protestor, the appellant herein. The appellant thus filed an affidavit of protest to confirmation of the grant and after hearing the evidence from both parties, the trial magistrate reached a ruling delivered on September 7, 2021 wherein the court held that the protest was without merit and as such dismissed it.

3. Being dissatisfied with the said ruling, the appellant filed the appeal herein in which he listed eight grounds of appeal in the memorandum of appeal dated September 20, 2021.

4. The appeal proceeded by way of written submissions as had been directed by this court.

5. The appellant merged the 8 grounds of appeal into two main grounds and thus submitted that the respondent had previously benefitted from the deceased during his lifetime and so was not entitled to any portion of LR Ngandori/Kiriari/ 1416 and thus relied on section 42 of LSA. That the respondent herein had also been given land by the deceased at Gatondo measuring 15 acres by virtue of being the deceased’s first born son. Reliance was placed on the case of Veronica Njoki Wakagoto (deceased) [2013] eKLR. It was submitted that Peter Gicovi and Josiah Mbogo held LR Ngandori/Kiriari/ 1416 in trust for the entire 1st house of the deceased and had the same not been intended then the entire 1st house of the deceased would not have settled on the said parcel of land for over 40 years. That the parties’ grandfather, Munyau Mugereki, died intestate and had he intended that his LR Ngandori/ Kiriari/501 to devolve to the two brothers of the respondent, he would have transferred the said parcel of land to them during his lifetime or willed the same to them. Further, that LR Ngandori/Kiriari/501 and LR Ngandori/Kiriari/1416 measure 3 acres and; that the 1st house of the deceased who have already received a benefit consists of 5 members while the 2nd house consists of 9 members. That the proposed mode of distribution by the respondent, wherein he proposed that 0. 5551 ha be allocated to each house is unfair as it would mean that the 2nd house share their 0. 555ha amongst 9 members. The appellant relied on the case of Madris Mukawmbiro & 2others v Njeru Muchiri[2016] eKLR.

6. On the second ground, it was submitted that the 2nd house lives on LR Ngandori/Kiriari/1416 where they have built their permanent houses while the 1st house of the deceased resides on LR Ngandori/Kiriari/501. That the appellant testified that the same has been the position since 1966 while PW2 affirmed that the two families of the deceased have been living separately since early 1960’s in that, the 2nd family had been settled by the deceased elsewhere and that there is no evidence presented before the court showing that the respondent and his siblings from the 1st house ever objected or confronted the deceased on their exclusion from the occupation of LR Ngandori/Kiriari/1416.

7. The respondent on the other hand submitted on grounds 1, 3, 5 and 7 that it is not in dispute that the deceased was survived by fourteen children from a polygamous union of two wives and that the appellant belongs to the 2nd house while the respondent is from the 1st house. That the appellant’s mode of distribution proposed to share LR Ngandori/Kiriari/1416 to the members of the 2nd house only while the respondent proposed an equal share of the estate to all the children from the two houses. It was submitted that it was not true that the members of the 1st house live on LR Ngandori/Kiriari/501 in that the said land initially belonged to one Munyau Mugereki who was the deceased’s father. That the respondents’ witness testified that Munyau Mugereki categorically instructed the deceased to ensure that he transferred his land to Peter Gicovi and Mbogo Josiah Nyaga who are respondents’ siblings in that the duo had taken care of him while he was still alive. It was submitted that, had the deceased intended to giveLR Ngandori/Kiriari/501 for the benefit of the first house and retain LR Ngandori/ Kiriari/1416 for the 2nd house, then the deceased should have perfected the gifts during his lifetime to reflect such. That the deceased was the registered proprietor of LR Ngandori/ Kiriari/1416 and as such, he had the legal capacity to sub divide and transfer the land to the members of his second house during his lifetime. Reliance was placed on section 38 of the LSA buttressing the need for all the children of the deceased herein to inherit the estate of their late father equally.

8. On grounds 2, 4 and 6, it was submitted that the members of the 1st house did not receive any previous benefit from the deceased during his lifetime. That one cannot transfer that which he does not have and therefore, the allegation that the respondent had already benefited from the estate of the deceased was not proved. Further that, the appellant’s father was not the only surviving child of Munyau Mugereki but none of the surviving children raised an objection to confirmed grant. In a nut shell, it was submitted that the deceased did not own LR Ngandori/Kiriari/501 and therefore he could not give the same to the first house as alleged; and that for section 42 of LSA to apply, the beneficiaries must have benefitted from the estate of the deceased such that if the same is not transferred to a beneficiary it would remain part of the estate. The respondent relied on the case of Micheni Aphaxard Nyaga & 2others v Robert Njue & 2others [2021] eKLR. In the end, the appellant prayed that the appeal herein be dismissed with costs to the respondent.

9. I have considered the grounds of appeal, lower court record and the written submissions by the parties and in my view, this court has been called upon to determine whether the appeal herein is merited.In re Estate of Julius Ndubi Javan(deceased) [2018] eKLR the court stated as follows;“The primary duty of the probate court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which prima facie valid should be determined before confirmation.”

10. In my view, I find that the main issue that I have to deal with first is whether indeed the respondent and the 1st house of the deceased had previously benefitted from the deceased during the deceased’s lifetime. The appellant submitted that indeed the members of the 1st house are not entitled to any portion of LR Ngandori/Kiriari/1416 as they had been given LR Ngandori/Kiriari/501 which they occupy. Further that, the respondent had also been given land by the clan at Gatondo measuring 15 acres by virtue of him being the 1st born son of the deceased. In his view, it would be fair and just that all the assets be laid on the table and that the same be distributed equitably and reasonably taking into account what the beneficiaries already have.

11. On the other hand, the respondent denied the averment by the appellant that the members of the 1st house reside on LR Ngandori/Kiriari/501 and to the contrary stated that the only land parcel forming the estate of the deceased is LR Ngandori/Kiriari/1416 only. That Munyau Mugereki who is the deceased’s father had categorically instructed the deceased to transfer LR Ngandori/Kiriari/501 to Peter Gicovi and Mbogo Josiah Nyaga who are the respondent’s siblings. That the main reason why the land was given to them was that they had taken care of Munyau Mugereki when he was still alive.

12. Section 42 of the Law of Succession act is instructive on this as it provides 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 property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

13. On the other hand, section 28 of the Law of Succession Act which provides that;“In considering whether any order should be made under this part, and if so what order, the court shall have regard to………….(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime.”

14. Therefore, the provisions in sections 28 and 42 of the Law of Succession Act embraces elegant principles of equity, equality and fairness in the distribution of the estate of the deceased to beneficiaries; it avoids double-portion syndrome and greed of beneficiaries.

15. In support of his case, the respondent submitted that LR Ngandori/Kiriari/501 was never owned by the deceased herein but by the father of the deceased who donated it to the two sons of the 1st house. Further that, the gift was perfected by way of Succession Cause No 1404 of 2002 and that this grant has never been challenged. On the other hand, the appellant submitted that the respondent and infact the 1st house had previously benefitted from the estate of the deceased herein. This court has independently perused the record filed by the parties; specifically the green card of LR Ngandori/ Kiriari/501 and I note that the persons to whom the land belong to are listed as Peter Gichovi Nyaga and Mbogo Josiah Nyaga. Further, on the said green card, it is indicated that the said land was transmitted to the two from one Munyao Mugereki whereas the matter before this court relates to the estate of Nyaga Munyao. I therefore agree with the respondent that the said LR Ngandori/Kiriari/501 should not form part of the estate of the deceased herein as the same land belongs to another person all together. I therefore hold that the gift by Munyao Mugereki cannot therefore be referred as gift inter vivos as the same never belonged to the deceased person herein. [See in the re- estate of the Gedion Manthi Nzioka(deceased) [2015] eKLR].

16. According to section 3 of the Law of Succession Act,“Estate” means the free property of a deceased person” while “free property” in relation to a deceased person, means “the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death”.

17. It is, therefore, clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by that time his interests had not been terminated.

18. It is not in dispute that LR Ngandori/kiriari/1416 forms the estate of the deceased herein which is under determination and given the fact that the deceased died intestate, in my humble view therefore, I find that the estate should be shared between the two houses. In that regard, I am guided by section 40 of the LSA.

19. The said section states as follows:section 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 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.”section 40 (2):-“The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

20. Having established the law relating to the distribution of the estate of the deceased, I turn to the question of who the beneficiaries of the estate of the deceased are. The deceased had two houses. Section 3 of the Law of Succession Act, defines the “house” as a family unit comprising a wife, whether alive or dead at the date of the death of the husband, and the children of that wife. There is no discrimination of the children on grounds of their sex. [See article 27 of the constitution and re Estate of Lerionka Ole Ntutu(deceased) [2008] eKLR]. Now that the two wives are deceased, all their children are therefore entitled to a share of his net intestate estate equally as provided for by section 40 of the Law of Succession Act.

21. Coming back to the issue herein and having found that the deceased did not during his lifetime give any of the houses and/ or children any of his property, I am inclined to make the following orders:i.That the property forming the estate of the deceased herein isLR Ngandori/kiriari/1416. ii.Summons for confirmation of grant dated September 17, 2019 is allowed.iii.That LR Ngandori/kiriari/1416 shall be distributed equally to all the children of the deceased herein.iv.Each party shall bear their own costs.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OFOCTOBER, 2022. L. NJUGUNAJUDGE…………………………………..…….. for the Appellant………………………………………..for the Respondent