[2022] KEHC 640 (KLR)

Kimotho v Mutunga (the Administratrix of Estate of Peter Kimotho (Deceased) (Civil Case E134 of 2018) [2022] KEHC 640 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 640 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Case E134 of 2018

MM Kasango, J

June 16, 2022

Between

Joseph Kandiki Kimotho

Plaintiff

and

Magdalene Kaluki Mutunga (the Administratrix of Estate of Peter Kimotho (Deceased)

Respondent

(Being an appeal from the judgment in Chief Magistrate’s Court at Thika (C.A. Otieno Omondi, SPM) in Civil Case No. 194 of 2008 dated 27th September, 2018)

Judgment

1. Kimotho Nzaudeceased, whose estate is the subject of this appeal died on 2nd April, 2001. The District Officer of Kakuzi Division wrote a letter addressed to Thika Magistrate’s Court, dated 28th May, 2008 whereby he identified the following as the sons and beneficiaries of that estate, that is:- Peter Kimotho

Masinga Kimotho

Joseph Kandiki Kimotho

2. The deceased estate was indicated in that letter to consist of one property, that is, Ithanga/phase-1/227, (hereafter parcel No. 227).

3. Peter Kimotho (hereafter Peter) petitioned for grant of letters of administration intestate. That petition was supported by the consent of Masinga Kimotho (hereinafter Masinga) Joseph Kandiki Kimotho (hereinafter Joseph) did not consent to that petition. A citation directed at Joseph was filed by Peter. Joseph responded by filing an objection to making grant on the basis that the deceased died leaving a written Will.

4. The trial court did not determine that objection but proceeded to appoint both Peter and Joseph as joint administrators of the estate of the deceased.

5. By application of summons for confirmation of grant, Peter sought the suit property to be shared equally between the three brothers. Joseph filed an affidavit of protest. The foundation of that protest was that the deceased died leaving a written Will. Further in that affidavit, Joseph deponed:-“Thatas per the said Will, I am solely entitled to Land Parcel No. Ithanga/phase-1/227. Thatduring the deceased lifetime he had already given to Peter Kimotholand parcel Ithanga/phase-1/140 measuring 7. 4 acres.That Masinga Kimothowas also given Land Parcel ITHANGA/PHASE-1/139 measuring 7. 4 acres.ThatI am the one who is in actual possession of Land Parcel Number Ithanga/phase-1/227 since the lifetime of the deceased.”

6. Peter passed away on 4th February, 2014. His wife Magdalene Kaluki Mutunga (hereinafter Magdalene) obtained Limited Grand ad litem in respect of Peter’s estate. On obtaining that the Limited Grant Magdalene proceeded to prosecute the pending application for confirmation of grant.

7. The trial court directed the application for confirmation of grant and the affidavit of protest to confirmation filed by Joseph be heard by viva voce evidence.

8. In evidence in support of the proposed confirmation of grant, Magdalene stated that the deceased, her father in law owned only one parcel of land, the parcel No. 227. She and her family live in parcelIthanga/phase-1/140 (hereinafter parcel No. 140). That parcel No. 140 belonged to Mutunga Kitheu who allowed her and her family to occupy his land (parcel NO. 140). Mutunga Kitheu allowed Magdalene and her family to occupy that parcel of land as they sourced for money to buy that land. Magdalene confirmed that Peter Kimotho (deceased) her late husband was buried on parcel NO. 140. Magdalene also confirmed that Joseph was in possession of parcel No. 227.

9. Magdalene stated that the deceased did not tell anyone in the family he was writing a Will. This is what she stated about the deceased’s state of health:-“Before he died Kimotho Nzau had broken legs. He was very old and was … disoriented. He could not feed himself … I used to feed him and cloth him.”

10. No further evidence was called in support of the application for confirmation of grant.

11. Joseph in support of his affidavit of protest to confirmation of grant stated that their deceased’s father had 6 children as follows:-1. Peter Kimotho Nzau (now deceased)2. Masinga Kimatho Nzau3. Joseph Kandiki Kimotho4. Rose Muthoni Kimotho5. Angelina Mbenela Kimotho6. Agnes Wayua

12. Joseph stated that he was not present when their deceased father wrote his Will. That the Will was read later to them by Angeline Kasavi Mbuvi. That the deceased gave his sons land in his lifetime. Peter (deceased) was given Parcel No. 140. Masinga was given by deceased land parcel No. 139. That the parcels of land given to Peter (deceased) and Masinga were purchased by deceased but the titles were not transferred into the deceased’s name. That it was only parcel No.227 that was registered in the deceased’s name. Joseph stated each of his brothers and their families occupied their parcels of land and he was in possession of parcel No. 227. He stated that when the Will was read Peter (deceased) and Masinga signed a document signifying their acceptance that they would not seek to take each other’s parcels of land. The minutes of that meeting were exhibited in evidence.

13. On being cross examined on the health status of the deceased, Joseph stated:-“The Will was prepared in 2000. He prepared it while at home. He had a problem with his leg. He could eat and dress himself. I was at work when it was prepared. The deceased gave the will to Angeline Kasave."

14. The second witness to testify in support of Joseph’s protest to confirmation of grant was Masinga. He confirmed deceased wrote his Will. Deceased wrote it in his presence. He confirmed deceased gave him parcel No. 139. That parcel NO. 139 is registered in the name of Nyagah Munyambu. It is 6 acres. Masinga also stated that Peter deceased was given parcel No. 140 which parcel was purchased by the deceased from Mutunga Kitheu their grandfather who also was deceased. Joseph was given parcel No. 227 which parcel was registered in deceased’s name. Masinga said he was satisfied with the parcel given to him by deceased and did not wish to inherit the parcel given by deceased to Joseph. Masinga also confirmed he was present at a clan meeting where he and his male siblings signed a document confirming they were satisfied with the land given by the deceased.

15. The third witness who testified in support of Joseph’s protest to confirmation was Angelina Kasavi Mbuvi. She is a nursery school teacher. She recalled when the deceased brought his Will to her to keep and read it “to his people”. This witness confirmed that she was not a member of deceased’s family or clan. She confirmed she read out the Will to the deceased’s family and the three sons of the deceased signed a document confirming that parcel No. 227 was left to Joseph and they had not claim over it.

16. The fourth witness in support of Joseph’s protest was Angeline Mbenako Muendo. Angeline is daughter of deceased. She stated that their deceased father gave his three sons land to the exclusion of his three daughters. She confirmed Peter (deceased) had been given parcel of land the deceased purchased from Wakitheu while Masinga’s parcel was purchased by deceased from Nyagah Munyambu. She stated neither Wakitheu or Munyambu were living on those parcels of land.

17. This witness confirmed that she was present when the deceased wrote his Will. She also confirmed that her sister Anna Kivake was unwell, was present when the Will was written by deceased.

18. The trial court by its judgment of 27th September, 2018 made a finding that the protest failed and ordered parcel No. 227 be shared equally between the three sons of deceased. The following is the finding of the trial court:-“The Will relied on by the protestor does not contrary to the protestor’s affidavit sworn 8th November, 2013 adequately identify the parcels of land given to Peter Kimotho and Masingo Kimotho to enable the court hold that they were Ithanga Phase1/140 and Ithanga Phase 1/139 respectively. In view of this, I am of the considered view that the protestor failed to demonstrate to the required standard that Ithanga Phase 1/140 and Ithanga Phase 1/139 also formed part of the estate of Kimotho Nzau and were therefore available for distribution to his heirs and that Peter Kimotho and Masinga Kimotho had been allocated this properties leaving him as the one solely entitled to Ithanga Phase 1/227. There was no sale agreement produced or any witness to the sale of the two properties to the deceased …I therefore find given the evidence presented that the estate of Kimotho Nzau (deceased) consists of parcel of land No.Ithanga Phase1/227 and direct that the same be distributed equally among Joseph Kandiki Kimotho, Masinga Kimotho and Magdalene Kaluki Matunga (to hold in trust for the house of Peter Kimotho (deceased).”

Analysis 19. This appeal from Thika Magistrates’ court judgment is by way of retrial. On this retrial, this Court is required to reconsider the evidence, evaluate it 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 court’s findings of fact if it appears that the court either failed to take account of particular circumstances or probabilities material to estimate evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case general. See Selle & Another v Associated Motor Boat Co. Ltd & thers (1968) EA 123.

20. My appreciation of the issue that was before court for determination was whether the deceased died leaving a valid written Will. If indeed the deceased’s Will was valid, did Peter and Masinga obtain parcels of land as gift inter vivos and if the deceased made those gifts should they be taken into account in determining the distribution of the estate.

21. The deceased’s Will was written in Kamba language. It is translated into English language by Dunstan Mutuku Wambua Advocate. I will reproduce the relevant part to this case of the deceased’s Will.“WillTo My People I Kimotho Nzaustate that if I die the title to my land be given to Joseph KaandikiB. Kimothotogether with the identity card.

IKimotho Nzaustate that if I die Peter Mulwa will not live on my land and should go back to his father.

I Kimotho state that Peter Kimotho should live on the land of Wakitheu, and Masinga Kimotho on Nyaga’s Land and Kandiki on the land he has been living on.

…

Kandiki is not my only child just because he solely pays for my hospitalization.”

22. A valid Will under the Law of Succession Act Cap 160 should be in compliance with the provisions of Section 11 of Cap 160. That Section is in the following terms:-No written will shall be valid unless-(a)The testator has signed or affixed his mark to the will, or it has been signed by some other person in the presence and by the direction of the testator;(b)The signature or mark of the testator, or the signature of the person signing for him, is so placed that it shall appear that it was intended thereby to give effect to the writing as a will;(c)The will is attested by two or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

23. Section 5 of Cap. 160 provides rebuttal presumption that the person making the Will is of sound mind (section 5(3)). The person who alleges the testator was not of sound mind bears the burden to prove the same (Section 5(4)). Section 5 of Cap 160 is in the following terms.“5(1) … every person who is sound of mind and not a minor may dispose of his free property by will …(2)…(3)Any person making or purporting to make a will shall be deemed to be of sound mind for the purpose of this section unless he is, at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.(4)The burden of proof that a testator was, at the time he made any will, not of sound mind, shall be upon the person who so alleges.”

24. The evidence the trial court was presented on the state of mind was solely from Magdalene. Magdalene stated of the deceased:-“He was very old and was disoriented.”

25. Such evidence in my view, does not meet the civil standard of proof. The trial court; therefore was required to presume the deceased was of sound mind when he wrote his Will. See the case In re Estate Murimi Kennedy Njogu – (deceased)2016 eKLR thus:-“The burden of proof in the first instance lies upon the person alleging lack of capacity. Once it is established to the satisfaction of the court that in fact the testator was not of sound mind then the onus is shifted to the person propounding the will to prove the existence of mental capacity. This was the holding of the court in the case of In Re Estate of Gatuthu Njuguna (Deceased) where it quoted an excerpt from Halsbury's Laws of England:-‘where any dispute or doubt or sanity exists, the person propounding a will must establish and prove affirmatively the testator's capacity and that where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval. The same treatise further shows that the issue of a testator's capacity is one of fact to be proved by medical evidence, oral evidence of the witnesses who knew the testator well or by circumstantial evidence and that the question of capacity of is one of degree, the testator's mind does not have to be perfectly balanced and the question of capacity does not solely depend on scientific or legal definition. It seems that if the objector produces evidence which raises suspicion of the testator's capacity at the time of the execution of the will which generally disturbs the conscience of the court as to whether or not the testator had necessary capacity, he had discharged his burden of proof, and the burden shifts to the person setting up the will to satisfy the court that the testator had necessary capacity.’”

26. My finding is that Magdalene failed to prove the deceased suffered from mental impairment to affect his free will to write his Will. There being no allegation that the deceased did not sign the Will, this Court accepts that the Will was of the deceased. Having perused the translated Will, I am satisfied that the said Will was witnessed by more than two persons (Section 11(c)).

27. The trial court by its judgment found that the intentions of the deceased were not clear. That the Will was ambiguous. In my humble view, there is an error in that finding. The deceased referred to the properties that his sons occupied, not by title number but by the names the family referred to them. In the case of Peter (deceased) the deceased stated he should continue to live on the land of Wakitheu. Magdalene in her evidence in chief stated that parcel No. 140 belonged to Kitheu. She thereby confirmed what the deceased stated in his Will. The deceased further stated in his Will that Kandiki was to continue living “on the land he has been living on.” Magdalene in evidence confirmed that “Kandiki is the one cultivating No. 227. ” Kandiki is the one I have referred to in this judgment as Joseph. Magdalene having confirmed that Joseph resides on parcel No. 227, it follows there was no ambiguity in the intentions of the deceased. His Will was written in terms of names that his family members had assigned referred to the parcels of land. Deceased was 99 years when he passed away on 2nd April, 2001. For the court to expect such an elderly man to necessarily refer to his land by the parcel numbers could in my view, lead to injustice to the deceased. The threshold is in my view, to find the express intention of the testator. My consideration of the evidence adduced before the trial court is that the written Will provides sufficient testamentary intention of the deceased. That finding is bolstered by the fact Masinga confirmed that he resides on parcel No. 139 which parcel the family refers to as ‘of Nyaga’. That is precisely how the deceased referred to that parcel of land. There is no ambiguity in the deceased’s Will.

28. Further, I find that the parcels of land given to Peter (deceased) and Masinga were gifts inter vivos. They both confirmed in the notes taken at the clan’s meeting of 7th September, 2002. Both of them signed next to following note:-“Me (Peter) (Masinga) I have left the piece of land I wanted from the land Kaandiki because I was given my own land by the parents so this land is for Kaandiki.My signature: (signed by Peter)My signature: (signed by Masinga)”

29. Since the deceased had indeed made such gifts inter vivos then Peters (deceased) and Masinga’s gifts must be taken into account when the estate is distributed: See Section 42 Cap 160. This would mean that both Peter (deceased) and Masinga cannot claim as dependants who were not provided for in the deceased’s estate as provided under Section 26 of Cap 160. See also Section 42 Cap 160 as follows:-“42. Where-(a)an intestate has, during his lifetime or by will paid, given or settled any property for or the benefit of a child, grandchild or house; or taken had he not predeceased the intestate.That property shall be taken into account in determining the share of the set intestate estate finally, accruing to the child grandchild or house.”

30. It is in view of the above that I find the appeal must and does succeed. In order to ensure that Joseph does not end up with hollow success with this judgment, this Court will revoke the grant issued by the trial court and will issue a fresh grant.

Disposition 31. The judgment of this Court is that in accordance with the Will of the deceased an order is made as follows:-(a)The grant issued in the trial court in Thika Chief Magistrate’s Court Succession Cause No. 194 of 2008 is hereby revoked. A fresh grant of probate with Will attached in the Estate of Kimotho Nzau deceased is issued to Joseph Kandiki Kimotho.(b)The property Ithanga/phase1/227 shall wholly be inherited by Joseph Kandiki Kimotho.(c)A confirmed grant shall be issued in terms of (b) above.(d)This appeal is granted in the above terms with costs.

32. Orders accordingly.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 16 TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Appellant: Ms. Wainaina H/B Mr. NgigiFor the Respondent : N/ACOURTJudgment delivered virtually.MARY KASANGOJUDGE