[2022] KEHC 2459 (KLR)

REPUBLIC OF KENYA

IN TH HIGH COURT OF KENYA

AT KITUI

HIGH COURT CIVIL APPEAL NO. E001 OF 2020

KYOA NDEWA..........................................................................................APPELLANT

-VERSUS-

PATRICK MULYUNGI NDEWA...................................................1ST RESPONDENT

BENARD VUNDI NDEWA.............................................................2ND RESPONDENT

Being an appeal the Ruling of Principal Magistrate delivered on 24th September 2020

in Mwingi Succession Cause No. 30 of 2016.

J U D G E M E N T

1. This is an appeal which arose from the ruling (it should have been a judgement) of I.G. Ruhu, the Resident Magistrate delivered on 24th September 2020 vide Mwingi PM’s Court Succession Cause No. 30 of 2016.

2. In that cause, Ndewa Kimele Mbumbu the deceased, was polygamous and was married to 2 wives. The 2nd wife Kyoa Ndewa, the appellant herein is the only surviving spouse with the 1st wife Syumiti Ndewa having predeceased the deceased in the said cause.

3. The respondents herein are two of the children from the first house and it is apparent from the record of the trial court that the parties agreed on the mode of distribution of all the assets comprising the estate save for one property namely a developed plot 1 situated at Mwingi Market. The plot measures 50 ft by 100 ft and the trial court upon trial determined that the plot be divided into two equal parts with each house getting an equal portion. The trial court held that the appellant being the surviving spouse will enjoy life interest on the half share.

4. The appellant felt aggrieved and lodged this appeal raising the following grounds namely:

a) That the learned trial magistrate erred and misdirected himself in law and fact by failing to find and hold the appellant has life interest over the properties of the deceased hence arriving at a decision unsupported in law

b) That the learned trial magistrate erred and misdirected himself in law and in fact by relying on unsubstantiated evidence hence arriving at a wrong decision

c) That the learned trial magistrate erred and misdirected himself in law and in fact by failing to conclusively determine all the rights of the beneficiaries hence reaching on a wrong decision

d) That the learned trial magistrate erred in law and in fact by making a discriminatory and unfair decision against the appellant contrary to the law

e) That the learned trial magistrate erred in law and in fact in failing to consider the evidence produced in court by the appellant during the hearing of this suit

f) That the learned trial magistrate erred and misdirected himself in law and fact by failing to consider the appellant’s children who are still in school hence reaching a wrong decision

g) That the learned trial magistrate erred in law and in fact in considering irrelevant factors and failing to consider relevant factors in his ruling.

5. The appellant in her written submissions through Counsel faulted the trial court for failing to determine that she was entitled to life interest over the entire plot. She has relied on the decision in Mary Wanjiku Kamonde versus Daniel Muriithi Kamonde [2011] eKLR which gave a proper definition of the term ‘‘net estate’’. She has further relied on the case of Re Estate of Stephen Wahome Gikonyo (deceased) [2020] eKLR in her contention that she is entitled to life interest over the children as stipulated under Section 35 of the Law of Succession Act.

6. The Respondents has opposed this appeal through submissions made by their learned counsel dated 21st September 2021. They have supported the decision made in the lower court contending that it also reflected the wishes of the deceased. According to them the deceased had expressed wishes that his properties should be divided equally between the two households.

7. They have further submitted that the issue of life interest of the appellant should only apply to half share given to the 2nd house and that the portion upon her demise should revert to her children.

a. The respondents have relied on the case of the Estate of the late George Cheriru Chepkosiom [2017] eKLRwhere the court took the view that a wife’s contribution in acquisition of property is a relevant factor to be considered before distribution of estate of deceased is done. The court took the contribution into account when making a determination of what the widow was entitled to in a succession cause involving a polygamous family. The court also took into account the fact that the 1st wife had been married many years before the deceased married the second wife and also the fact that majority of the property was acquired before the second wife got married to the deceased. The court proceeded to award the 1st wife a larger portion of the net estate.’’

8. This court has considered this appeal which basically revolves around whether or not the appellant should be allowed to enjoy life’s interest over the contested property which is plot 1 Mwingi Market. The trial court held that she should enjoy her life interests over half the share of the plot which is also the share going to her household.

9. As observed above, the deceased in this matter was a polygamous with two wives one of whom survived him and is the appellant herein.

10. The appellants contend that the applicable provision of the law in the present scenario in Section 35 of Law of Succession Act.

The provisions provide: -

‘‘Where intestate has left one surviving spouse and child or children.

Subject to the provisions ofsection 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to—

a) the personal and household effects of the deceased absolutely; and

b) a life interest in the whole residue of the net intestate estate:

Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.’’

11. It is clear from the reading of the above provision that the Section is subject to provisions of Section 40 of the Law of Succession Actwhich deals with a polygamous situation. The sections provide: -

‘‘Where the intestate was polygamous

i. 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.

ii. The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ’’

12. It is quite clear from the above that in the first instance the estate of polygamous man who dies intestate would be divided according to the number of houses and then according to the number of children in each house with a wife added as a unit in each house. This provision is reflective of many customary practices in polygamous unions in Kenya and the respondents have submitted that it was the wish of their father that the estate be divided equally among the 2 houses.

13. This court as an appellate court was not invited to look into how the other properties comprising the estate were divided or distributed. Suffices to note that, both houses appeared before the trial court and stated categorically that they were all in agreement on how the other properties comprising the estate were to be distributed and only invited the intervention of the trial court to determine developed plot 1 at Mwingi market was to be distributed. The trial court made the following observation in its ruling.

‘‘Having considered the law on the matter and all the proposals on the distribution of the contentious property that have been placed before me, I am inclined to distribute the estate of the deceased as regards the contentious property by sub-diving it into two to be shared equally by each house.’’

14. The appellant contends that the trial court fell into error by misapplying the law but I am not persuaded. The provisions of Section 35 of the Law of Succession Act as cited above are not to be construed in isolation because the provisions are subjected to the provisions of Section 40 which deals with distribution of properties of a deceased person who was polygamous. That means that before subjecting the distribution to the respective beneficiaries, in the first instance, the estate should be divided equally between the number of houses of course the provision is not cast in stone. The courts have held that applying the Section strictly in some instances can lead to serious injustice. This was held in Rono versus Rono [2005] eKLR 538, Rael Vulekani Musi versus Rachel Edagaye Akola [2016] eKLR and in the Estate of the late George Cheriru Chepkosiom [2017] eKLR

In those cases, courts held the position that the contribution made by the 1st wife should be taken into account to avoid the injustice of having a wife who had spent the better part of her life contributing towards acquisition of assets with the deceased having to get equal share with a younger wife who comes into the picture later on after assets have been acquired. The courts were of the opinion that before subjecting the net estate into equal distribution, evidence of the contribution of the 1st wife should be taken into account so that she is given her due share.

In Scholastic Ndululu Sura versus Agnes Nthenya Sura [2019] eKLR, the Court of Appeal weighed in to that position when it held as follows: -

‘‘It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.’’

15. In this instance, there are no such claims from the 1st house. What is clear going by the above decision however is that a trial court has a discretion to take factual circumstances in each case in reaching a determination when applying the provisions of Section 40 of Law of Succession Act. This court as an appellate would rarely interfere with a discretion exercised by a trial court unless it is shown that wrong principles were applied and that in that end a miscarriage of justice was occasioned.

16. In this instance, the contentious property is a developed plot measuring 50 ft by 100 ft. There was evidence presented before the trial court that revenue accrued from that property. The trial court held that the same property be divided into 2 equal parts of 25 ft by 100ft each and each house manages their respective portions. This court finds the determination to have the plot divided into 2 equal shares between the 2 households to be most plausible and just way of distributing the contested property.

The half share given to the appellant’s household should be in the hand of the appellant who will enjoy life interest and upon her demise the share will revert to her children who will share it equally.

The upshot of this is that this court finds no merit in this appeal. The same is dismissed but owing to the nature of conflict and the relationship among the parties I will not wake any order as to costs.

Dated, SignedandDeliveredatKituithis10thday ofFebruary, 2022.

HON. JUSTICE R. K. LIMO

JUDGE