[2022] KEHC 10755 (KLR)

Kumbiti v M’Kirichiu & another (Civil Appeal E019 of 2020) [2022] KEHC 10755 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10755 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E019 of 2020

EM Muriithi, J

June 9, 2022

Between

Patrick Kumbiti

Appellant

and

Francis Muriati M’Kirichiu

1st Respondent

Joseph Muriati Mukandia

2nd Respondent

Judgment

1. On 10/9/2019, the appellant filed a petition for letters of administration intestate in respect of the estate of M’Iburi Mborothi Alias Iburi Mborothi(Deceased) in his capacity as the deceased nephew. The chief of Nchooro Location in his introductory letter dated 4/9/2019 listed the appellant as the sole beneficiary of the estate of the deceased by virtue of being a brother to the deceased. The appellant was issued with a grant of letters of administrate intestate on 30/10/2019, but the respondents successfully applied for its revocation vide summons for revocation of temporary grant dated 16/1/2020. The 2nd respondent proceeded to file objection to the making of grant, petition by way of cross petition application and answer to petition for a grant all dated 29/5/2020. After hearing all the parties, the trial court on 3/11/2020 rendered itself thus, “it means that as at 13. 11. 2015 before any succession cause of the deceased, estate was determined, the petitioner had already sold the deceased land to a third party. This offends clear provisions of the Succession Act. The upshot of all this is that the petitioner was not acting in the best interest of the estate of the deceased. Given all of the foregoing, I find that the 2nd objector has proved his claim. The objection by the 2nd objector, which is the only one on record is allowed. The cross petition of the 2nd objector is allowed. The petition by the petitioner is dismissed with costs.”

2. Aggrieved by the dismissal of his petition for letters for letters of administration, the appellant appealed to this court vide a memorandum of appeal dated 16/11/2020 raising 7 grounds of appeal as follows:a.The learned Senior Resident Magistrate erred in law and fact in holding that there was an oral will without proof of the same.b.The learned Senior Resident Magistrate erred in law and fact in holding that there was an oral will of the deceased when the date of the oral will of the deceased.c.The learned Senior Resident Magistrate erred in law and fact in not finding that indeed the deceased died intestate and that the Respondent having not been related to the deceased had no right to get the property of the deceased.d.The learned Senior Resident Magistrate erred in law and fact in interpretation of S.9 of the law of Succession Act cap 160 and hence arrived at wrong conclusion.e.The learned Senior Resident Magistrate erred in law and fact in not making a final determination on the distribution of the estate of the deceased and left some property undistributed.f.The learned Senior Resident Magistrate’s decision is against the weight of law and evidence.g.The learned Senior Resident Magistrate erred in law and fact in holding that the petitioner had sold the land of the deceased when a green card was on record showing the land was intact and not alienated to a third party.

Evidence 3. Francis Muriati testified on oath as OW 1. He stated that he was born in Ncooro, and his grandfather was buried there in 1965 while his father was buried in 1975. The deceased had leprosy and he used to take care of him together with his mother and the 2nd objector’s wife. The petitioner went to Timau and left him alone. The deceased said he left his property to him (OW1) and the 2nd objector’s wife. They cultivated the land with his mother and wife of 2nd objector and prayed for the petition to be thrown out.

4. On cross examination by counsel for the petitioner, he stated that he was talking of land 318 and 180 Akithi 3. The deceased was his step father and his father was called M’Kirichu Tharuya. The father of the deceased was called Mborothi Gaitiri and his wife came from Antu antama clan. The petitioner was from his cousin and Kumbiti was the child of Mborothi’s brother. The petitioner was related to the deceased but he sold land and ran to Timau. He buried his grandfather and father and had a burial permit for the same as nobody stopped him from burying them on his step father’s land. All his children were born on that land.

5. On cross examination by counsel for the 2nd objector, he stated that Mboroki died without a wife or children. The deceased had leprosy and swollen private part and very many people feared him. He was the one who looked after him together with the 2nd objector’s wife and his parents. When the deceased died, he buried him on his(deceased) land since he was the one who was taking care of him. The petitioner could not bury the deceased since the deceased had personally refused to be buried by the petitioner. The petitioner was in Timau where he stayed with his father, who was his(OW1) step father. The deceased left land to him and the 2nd objector. The land was 328 and 1801. Although 328 had a case between Daniel Kinyua Limburo against 5 interested parties, the case was subsequently dismissed.

6. Joseph Muriati Mukindia, OW 2 and a construction worker, in addition to adopting his statement recorded on 20/1/2020 as his evidence in chief, testified that the deceased gave him land.

7. On cross examination by counsel for the petitioner, he stated that his wife used to look after the deceased and he constructed a house for the deceased. Although he had no family relationship with the deceased, the deceased was like his father and the deceased called him like his son. He stayed on that land to date and he was given the land in 1978 by the deceased before he died on 2/5/1981. The deceased did not transfer the land to him as the deceased was afraid he would stop assisting him. Francis was the deceased neighbour and they came from one family. When he was given the land, there were elders like baba M’Manyara,Isaac Katuma and others died. The deceased called the elders in March 1991 and he was present when the deceased was buried. The deceased was buried by the undertaker and not Francis since the deceased had no wife and children. He gave a goat to the undertaker.

8. On re-examination, he stated that the deceased called the elders in 1991 March and he died in May 1991. Before the deceased died, he willed his land at Kiamugumo No. 328 to him(OW2). He has been using the land and in August that year, Daniel Kinyua and Patrick Kumbiti came and sprayed weed killer on his crops.

9. OW3 M’Itaya Banabi of Antuamwe in Ncooro adopted his witness statement as his evidence in chief. He testified that he used to know the deceased and he also knew Muriati. On cross examination by counsel for the petitioner, he stated that he knew Joseph Muriati and Francis Muriati. Joseph was married to a woman from M’Aritho, which was the same family as that of the deceased. He also knew Patrick Kumbiti who was a son of the brother of the deceased. Mborothi had no wife or children and he was buried by an undertaker. Joseph and Francis Muriati were of the same family with the deceased and he was present when the deceased talked of sharing the land. He could not recall the year but it was in March and it was Joseph Muriati who was staying on that land. It was not Patrick staying on that land.

10. On re-examination, he stated that he was in a meeting when an oral will was made. He wrote the names of the elders who were present and it was in March. After 2 months, the deceased died and it was Joseph using the land he was given.

11. OW4 Isiah Kaburu Mwitari of Akithi, adopted his witness statement as his evidence in chief. He added that he knew the deceased Mborothi as they used to stay together. I also knew Muruati and Kumbiti.

12. On cross examination by counsel for the petitioner, he stated that he knew Francis Muriati and Joseph Muriati, as they were of the same clan as the deceased. Patrick Kumbiti was a nephew to the deceased and the deceased had no wife or children. Joseph Muriati was an in law to the deceased and although the deceased was buried by an undertaker, Muriati took charge. He was present in March, when the deceased left land to Muriati. The land had a dispute but Muriati was using it. Kumbiti came to chase Muriati and currently both Muriati and Kumbiti were using the land. Trees were cut as the case progressed. It was Daniel Kinyua and Kumbiti who cut the trees.

13. On re-examination, he stated that Joseph Muriati brought the undertaker and a goat was slaughtered for the funeral rites. Before the deceased died, it was Muriati who was using the land but Kumbiti came after the death of the deceased. Kumbiti stayed at Timau. He heard the land being given to Joseph.

14. On cross examination by the 1st objector, he asserted that he knew the 1st objector as he was one family with the deceased. He confirmed that it was the 2nd objector who buried the deceased and the 2nd objector had the deceased burial permit.

15. OW5 Joshua Muthee from Muthara adopted his statement as his evidence in chief. He further stated that the deceased sold land to him and that he knew Joseph and Patrick. On cross examination by counsel for the petitioner, he stated that the sale agreement was taken to land’s office but he did not have a title deed. He was just cultivating the land and he had a letter from the land’s office. Francis Muriati was a clan member to the deceased while Joseph Muriati was staying with the deceased. The deceased used to call Joseph his son. Kumbati was the nephew to the deceased.

16. On cross examination by the 1st objector, he stated that a letter over land was written on 2/12/98 and he bought plot 2014 which became 1801 from the deceased.

17. OW6 Maceline Kabutire from Masiuku, adopted her witness statement recorded on 20/1/2020 as her evidence in chief. She further stated that Joseph Muriati was her husband.

18. On cross examination, she stated that her father was M’Giricho and her father in law was Mukindia. M’Giricho and Mukindia were related to the deceased. Patrick Kumbiti was son to her uncle and thus a nephew to the deceased. Kumbiti and the deceased used to stay on the same land and she has been staying and cultivating on the land in question to date. She was present when elders namely Muraya, Kabaru, Joseph Muriati and Kabirithu were called in March 1991 for the will. Since the deceased had no wife or son, he told the elders that she was his child since they stayed from 1975 till she got married in 1978. She used to stay in the home of the deceased and took care of him. It was Kambirithu who was closer to the deceased.

19. On cross examination by the 1st objector, she stated that the 1st objector was a clan member of the deceased. The deceased was very sick and he had leprosy. She used to take care of the deceased and even buried him. She was clan members with the deceased and she called people when the deceased died. The 1st objector used to stay in the same area and the 1st objector buried M’Giricho while she buried the deceased.

20. On re-examination, she stated that when the deceased died, Kumbiti was staying in Timau and he stays there to date. Kumbiti went in 1974 together with his family and they left the deceased alone. Patrick Kumbiti did not come during the burial of the deceased and she was present when the elders came.

21. For the respondent PW1 Patrick Kumbithi, the petitioner and the appellant herein, adopted his statement and list of documents as his evidence in chief.

22. On cross examination, he stated that he stayed at Timau from 1973 together with his father. Before that he stayed at Machuku. He denied that the deceased had leprosy. The deceased had elephantitis but he did not have a medical report to that effect. The deceased fell sick in 1972 and he was taken for treatment at Chogoria when they shifted. The land belonged to the deceased and it was 1801 and 328. The deceased died while staying on 1801. The deceased did not have a wife and children. He denied that Macelina used to stay with the deceased. The deceased recovered, went to stay at Timau then he returned home in 1990. The deceased fell sick again and he used to go and visit him. Around twice per month, someone other than Macelina and her husband used to take care of the deceased. He was not with the deceased when he died but he was present during the burial and Mweji buried the deceased. Confirmation letter showed that 328 belonged to Daniel Kinyua. He leased that land to Daniel Kinyua at Sh.40,000 in 2000 but he did not sell to him. The land belonged to the deceased but he gave it to Kinyua. The land was not Kinyua’s even though he had a confirmation letter. The confirmation letter was a forgery. Elders decided that they were aware of will giving land to Muriati but Muriati did not cultivate the land. He did not go to the land by force.

23. On cross examination by the 1st objector, he stated that he filed succession on 6/9/2018 and he had a copy of the search. He was not aware that Daniel Kinyua filed a land case in 2016.

24. On re-examination, he stated that the deceased was able to take care of himself. The deceased had leprosy and Adriano used to take care of him. He transferred the land to Kinyua but it reverted back to the deceased. They did a case at Njuri Nckeke where he won. He denied knowledge of any will.

25. PW2 Mwenda Romano from Ncooro adopted his statement as his evidence in chief. On cross examination by counsel for the 2nd objector, he stated that he knew Patrick Kumbiti, who relocated to Timau many years ago. The deceased did not have a wife or child and he did not have leprosy. Patrick Kumbiti started taking care of the deceased when he fell sick. He did not know when the deceased fell sick but the deceased fell sick for 2 to 3 months. The deceased was not sick and he was not admitted. Maceline was not taking care of the deceased as the deceased was strong. He was present when the deceased died at home. He was called by Kumbiti, who came to see the deceased. He saw Patrick at the funeral. Joseph Muriati did not give a goat to Mueji.

26. On cross examination by the 1st objector, he stated that he knew the 1st objector who was not related to the deceased. It was Kumbiti who buried the deceased and not the 1st objector.

27. On re-examination, he stated that the objectors were from one clan. Muriati was an in law to the deceased. He was aware of elders who went for a will of the deceased. He had not heard of any will to Muriati.

28. PW3 Adriano M’Mbre from Ncooro adopted his statement as his evidence in chief. On cross examination by counsel for the 2nd objector, he stated that he knew the deceased on 1/5/1991 and he also used to know him before then. The deceased died on 25/1/1991 and Patrick stayed at Timau from 1970 together with his father. The deceased had no wife or children. The deceased was alone in his home and his leg was swollen. The deceased did not have leprosy. The deceased had 3 goats and 2 cows. It was his mother who took care of the deceased. Patrick and Maceline did not take care of the deceased. There was a time the deceased called elders but he was not present. The land was being used by Kumbiti and not Muriati. Daniel Kanyua leased the land and he was not aware that the elders said the land belonged to Muriati.

29. On cross examination by the 1st objector, he stated that the 1st objector’s father used to have land there and the neighbour buried the deceased.

30. On re-examination, he stated that the deceased was not sick but he had a swollen leg. The deceased could take care of himself and the deceased did not do a will.

Submissions 31. The parties filed their submissions in respect to the appeal on 9/8/2021,19/8/2021 and 16/9/2021 respectively. The appellant submitted that the respondents did not prove the existence of an oral will or any will at all, as provided for under section 9 of the Law of Succession Act. He submitted that since there was a clear conflict as to what was said by the deceased in making the oral will, the alleged will ought to be invalidated as provided under section 10 of the Law of Succession Act. He submitted that since there was no oral will, the deceased died intestate hence he is the rightful heir of the estate of the deceased. He submitted that he was the closest relative to the deceased as the respondents and their witnesses admitted that the deceased had no wife or children, and thus he ranked high in priority as provided under section 29 of the Law of Succession Act. He faulted the trial court for making a determination only on distribution of LR Akithi 111/328 while leaving LR Akithi 111/1801 undistributed. He urged the court to set aside the trial court’s judgement and order the appellant to be the rightful heir of the deceased estate.

32. The 1st respondent submitted that Akithi 111/1801 and Akithi 111/328 were his properties and he should be allowed to continue to peacefully occupy them. He submitted that the appeal should be dismissed as he was the rightful heir of the deceased because he cared for him and buried him.

33. The 2nd respondent submitted that oral wills are valid and enforceable in law. He submitted that there was sufficient evidence that the oral will was made in March 1991 at a gathering in the home of the deceased. He submitted that it was not disputed that the deceased died on 2/5/1991 which was clearly 3 months of the declaration of the will. He urged the court to find that he had established the date and place the oral will was made, and relied on re Estate of Mugo Gathu Alias Mugo Gathiu (Deceased)(2019) eKLR in support thereof. He submitted that the trial court was right in finding that there was utterance of a valid oral will. He submitted that while intestacy rules only benefit who have a direct blood link with the intestate apart from spouse, under testate succession, the deceased can confer a benefit through a will to a person with whom he has no direct blood link. He submitted that even where a testator has not made a provision for his lawful dependants, it is not for the court in interpreting the will to seek to make provision for these survivors, and relied on re Estate of Sylvester Ezra Markus Ochanji (Deceased) (2018) eKLR. He submitted that the petitioner and any other person claiming to be entitled to inherit land parcel number 1801 or any other property of the deceased was at liberty to move the court appropriately under the necessary provisions of law. He submitted that the decision of the trial court was not against the weight of law and evidence. He submitted the appellant intermeddled with the estate of the deceased when he sold land to Daniel Kinyua. He submitted that he established the existence of a valid oral will in which he was bequeathed land parcel number L.R No Akithi 111/328. He urged the court to dismiss the appeal with costs.

Analysis and determination 34. From the grounds of appeal as framed, the principal issue for determination is whether the deceased left behind a valid oral will. Section 8 of the Law of Succession Act provides that, “A will may be made either orally or in writing.” Section 9 of the Law of Succession Act provides that, “No oral will shall be valid unless— (a) it is made before two or more competent witnesses; and (b) the testator dies within a period of three months from the date of making the will.”

35. Whereas the 2nd respondent contended that the deceased left behind a valid oral, the appellant maintained that the deceased died intestate and he was the only rightful beneficiary to his estate. It was admitted by the witnesses that the deceased herein died in May 1991. It was also conceded that the deceased did not have a wife or children and the petitioner was his nephew. OW1 on cross examination stated that, “the deceased left land to me and the 2nd objector. The land is 328 and 1801. ” OW2 testified on cross examination that, “I stay on that land to date….I was given the land in 1978 by the deceased before he died on 2/5/1981….when I was given land there were elders like baba M’Manyara. Others died. There was Isaac Katuma it was in March 1991. Deceased called elders.” When he was re-examined, he stated that, “he called elders in 1991 March. He died in May 1991. When he called elders. Before death is when he gave his will. The land I was given is at Kiamugumo No.328. I have been using the land.”

36. OW3 stated on cross examination that, “I was present when deceased talked of sharing the land. I cant recall the year but it was in March. It is Joseph Muriati who is staying on that land. It is not Patrick staying on that land.” On re-examination, he stated that, “yes, I was in a meeting when an oral will was made. I have written the names of the other elders who were present. It was in March. After two months he died. It was Joseph using the land he was given.”

37. OW4 stated on cross examination that, “I was present in March, when Mboroki left land to Muriati…..Muriati was using the land.” On re-examination, he stated that, “I heard the land being given to Joseph.”

38. When OW5 was cross examined, he stated that, “Joseph Muriati was staying with the deceased.” OW6 testified during cross examination that, “I am the one who was staying on this land that has a case. I am on that land to date…Elders were called in March,1991 for the will..I know their names, Muraya,Kabaru, and Joseph Muriati and Kabirithu. I was present.”

39. Although the appellant vehemently denied the existence of an oral will, he admitted that fact on cross examination when he stated that, “as per PEX2, it shows the land was witnessed to Joseph Muriati…Yes, elders decided that they are aware of will giving land to Muriati.” PW2 also admitted on re-examination the existence of the will when he stated that, “I am aware of elders who went for a will of the deceased.” That fact was buttressed by PW3 who stated on cross examination that, “Yes, there is a time the deceased called elders….No I wasn’t present….I am not aware that elders said land belongs to Muriati.”

Conclusion 40. From the totality of the evidence on record, the court finds that the 2nd respondent proved on a balance of probabilities, that is to say that it is more likely than not that, the deceased made oral utterances before some elders bequeathing him L.R No. Akithi 111/328.

41. As a matter of law, the court equally finds that the said utterances passed the test set out under section 9 of the Law of Succession Act to qualify as a valid oral will, as the same were made in the presence of more than 2 independent witnesses and the testator died 2 months after making the said utterances.

42. However, the court agrees with the petitioner that the determination of the trial court only related to L.R No. Akithi 111/328. In its words, the trial court stated that, “the objectors and their witnesses proved that indeed the deceased uttered that he has bequeathed parcel No. Akithi 111/328 to the 2nd Objector, before more than 2 witnesses.”

Orders 43. Accordingly, for the reasons set out above, the court finds that the appeal is unmerited, and the same is dismissed.

44. The petitioner and the 1st objector are at liberty to move the court appropriately for distribution of L.R No. Akithi 111/1801.

45. Each party to bear its own costs of the appeal.Order accordingly.

DATED AND DELIVERED ON THIS 9TH JUNE DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Ayub Ananmpiu & Co. for the Appellant.Mr. Francis Muriatu M’Kirichiu 1st Respondent in Person.M/S Murango Mwenda & Co. Advocates for the 2nd Respondent.