[2021] KEHC 9503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 409 OF 2007

1. LYDIA KARIMI

2. EDWARD MWIRIGI MBWIRI...APPLICANTS

- VS -

1. JOANINA KAIMURI MBWIRIA

2. JULIA MUGURE MBWIRIA

3. CHRISTINE MUKIRI

4. ROSEMARY MWENDWA MBWIRI

5. PHINEAS GIKUNDA MBWIRIA .............RESPONDENTS

R U L I N G

1. Summons for confirmation of grant dated 15th July 2019 were filed by Lydia Karimu the 1st Applicant herein seeking that grant of Letters of Administration made to her jointly with Joanina Kaimuri Mbwiria and Julia Mugure on 27th June 2019 be confirmed.

2. The Appellant identified herself and the 1st and 2nd petitioners as widows of the deceased. She also listed the sons and daughters of the deceased as follows:-

i. Edward Mwirigi Mbwiria

ii. Phineas Gikunda Mbwiria

iii. Edwin Mugambi

iv. Boniface Mutugi Mburia

v. Rosemary Mwendwa

vi. Harriet Karimi

vii. Caroline Gatwiri

viii. Eunice Kathambi

ix. Agnes Ntinyari

x. Christine Mukiri

xi. Mercy Gakii

xii. Rosa Wanja

xiii. Moreen Gatwiri

3. Assets forming part of the estate were listed as:-

a. Nkuene/L-Mikumbune/691 – 1. 30Ha

b. Nkuene/L-Mikumbune/694 – 0. 78Ha

c. Nkuene/L-Mikumbune/562 – 1. 081Ha

d. Nkuene/L-Mikumbune/690 – 1. 30Ha

e. Nkuene/L-Mikumbune/561 – 0. 423Ha

f. Nkuene/L-Mikumbune/689 – 1. 30Ha

g. Nkuene/Taita/2772 – 0. 014Ha

4. In her proposal Lydia Karimi distributed the estate as follows:-

1. Edward Mwirii to get LR Nkuene/L-Mikumbune/691 -1. 30Ha

2. Joanina Kaimuri Mbwiria to getLR. Nkuene/ L-Mikumbune/694 -1. 30Ha in whole

3. Julia Mugure to get LR No. LR Nkuene/L-Mikumbune/562 -Measuring 1. 30Ha in whole

4. Lydia Karimi to get LR No. Nkuene/Taita/2772(plot) measuring 0. 014 Ha in whole

5. LR No. Nkuene/L-Mikumbune/690 to be shared equally between - 0. 423Ha

Edward Mwirigi

Phineas Gikunda

Rosemary Mwendwa

Harriet Karimi

Christine Mukiri

6. LR No. Nkuene/L-Mikumbune/561 – measuring 1. 30Ha to be shared equally between Boniface Mutugi and Eunice Kathambi

7. LR No. Nkuene/L-Mikumbune/689 – 1. 30Ha to be shared as follows:-

0. 52 Ha to be shared equally between Caroline Gatwiri & Agnes Ntinyari

0. 78 Ha to be shared equally by :-

- Mercy Gaku

- Rosa Wanja

- Moreen Gatwiri

5. Boniface Mutugi Mbwiria in affidavit of protest sworn on 29th July 2019 averred that petitioners proposed mode of distribution was unfair and unproportioned. He argued that some of the persons listed were not related to the deceased and yet Patrick Mugambi Mbwiria a son to the deceased had not been included. He proposed that distribution be done in accordance with Meru customary laws per house as that was the wish of the deceased. He suggested that in paragraph 7 that those properties mentioned should be distributed equally among all the beneficiaries.

6. Hellen Mwari Murungi and Janet Nkirote Mungania also filed affidavit of protest through the firm of Mmboos Mutunga & Co. Advocates sworn on 30/7/2019 claiming that the deceased who was their brother held their fathers land in trust for them. Joanina Kaimwiru Mbwiria, Julia Mugure Mbwiria, Christine Mukiri, Rosemary Mwendwa Mbwiria and Phineas Gikunda Mbwiria filed affidavit of protest shown on 5th September 2019 giving their mode of distribution.

7. They claimed that Lydia Karimi was never married to the deceased and Harriet Karimi and Caroline Gatwiri were not his daughters. They averred that Lydia Karimi was a tenant at the deceased persons Nkubu town plot. It was averred that Edward Mwirigi Mbwiria was born to the deceased out of wedlock. They listed the names of the surviving widows of the deceased and their respective children at paragraph 2(A), (B), & (C) of the affidavit in protest. They also listed the properties left behind by the deceased and proposed distribution at paragraph 7 and said that that was the wish of the deceased.

8. They averred that the Sisters of the deceased, Hellen Mwari Murungi and Janet Nkirote Mungania were not entitled to inherit from the deceased estate as the deceased was an astute hotel businessman and coffee farmer and he acquired the assets listed and never held any entrust for the said sisters. They claimed that the claim by the sisters of the deceased was an afterthought as they never claimed from the deceased during his life time on even since 2007 when the cause herein was filed.

9. It was also averred that the said 2 sisters never utilized any portion of the deceased estate. The deponents said that the deceased was sick for 4 years and if he had intended to be giveth any land to his sisters he would have done so during his lifetime. They claimed that they reported the loss of the deceased person’s title deeds to the police and claims that the deceased left them with M/S. Joan W.G. Ndorongo & Co. Advocates is a lie as the deceased would have told them so.

10. In submissions dated 6th October 2020, the Applicants counsel argued that the 1st Applicant should be given LR No. Nkwene/Taita/2772 where she was cohabiting with the deceased in addition to other properties.

11. The petitioners advocate reiterated that the deceased never married the 1st Applicant and never left behind the daughters, namely Harriet Karimi and Carolyne Gathiri and that the 2 girls as well as Lydia Karingi & her children are not entitled to inherit from the estate. It was argued that there was no evidence presented to prove paternity of Harriet Karimi and Carolyne Gatwiri as well as Edwin Mugambi, Mary Gakii, Rosa Wanja and Moreen Gatwiri.

12. The petitioners gave the names of the deceased children as:-

a. From 1st House

1. Joanina Kaimuri - 1st wife

2. Phineas Gikundi – son

3. Rosemary Mwendwa – daughter

4. Agnes Karimi – daughter

5. Christine Mukii – daughter

6. Patrick Mugambi – son

b) From 2nd House

1. Julia Mugure – 2nd wife

2. Boniface Mutugi – son

3. Carolyne Gaiti – daughter

4. Eunice Kathambi – daughter

5. Agnes Ntunyari – daughter

b. Edward Mwirigi – born out of wedlock.

13. The petitioners argued that Hellen Mwari and Janet Nkirote had not proved as required under Section 107(1) of the Evidence Act that they were dependants of the deceased. The holdings of the Court of Appeal in Juletabi African Adventure Ltd & Another vs Christopher Michael Lockery [2017] eKLR was relied upon in that respect as well as Alice Wairimu Macharia vs Kirigo Phillip Macharia [2019] eKLR at paragraph 18. It was also submitted that there was no evidence that the deceased held any properties entrust for his sisters or brothers.

14. Counsel further draw the courts attention to the provisions of Section 29 of the Law of Succession Act as to who is a dependant & relied on the holding in Beatrice Ciamutuarugamba vs Fredrick Nkari Mutegi and 5 Others [2016] eKLR at paragraph 13 where it was held:-

“…From the foregoing a dependant under Section 29(b) & (C) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters but proof of dependency that counts”.

15. Further in Re-Estate of Joshua Orwa Ojodeh (Deceased) (2014) eKLR, it was held that “where a deceased person is survived by a spouse and child or children… the spouse and child or children are entitled to the estate exclusion of all other relative”

16. From the application for confirmation and supporting of affidavit as well as affidavits in protest by 2nd Applicant the 2 sisters of the deceased and the 2 petitioners and their daughters and in consideration of the submissions filed in support of confirmation and protests, the only issue is how the estate of the deceased is to be distributed as the issue of relationship between the deceased and 1st Applicant was determined in Ruling delivered on 27th June 2019 where this court found that the relationship between the deceased and the 1st Applicant may not have satisfied the elements of a valid Kimerus Customary Marriage but from the witnesses the 2 cohabited as husband and wife and their cohabitation resulted in the birth of Mercy Gakii, Rosa Wanja and Moreen Gatwiri. The court inferred the intention of the deceased and the 1st Applicant (Administrator) as that of husband & wife & applied the provisions of Section 3(5) of the Law of Succession Act.

17. This court also took cognizance of the fact that 1st Applicant and the petitioners filed the 2 concurrent petitions and whereas the 1st Applicant included the names of the 1st 2 widows and the 2nd applicant after being issued with a letter from the Chief, the 2 petitioners who were aware of the existence of the 1ST Applicant and the 2nd Applicant excluded them from the list of beneficiaries/dependants and filed petition without the authorization from the chief.

18. The 2nd petitioners, 1st and 2nd widows acknowledged that 2nd Applicant was the deceased persons son born out of wedlock and that he was entitled to LR. No. Nkuene/Lower Mikumbune/691 which he was occupying and utilizing. The 1st Applicant/Administrator has also proposed that LR Nkuene/Lower Mukumbene/691 goes to Edward Mwirigi Mbwiria. There being consensus as to distribution of LR Nkuene/Lower Mukumbene/691 the court therefore orders that the same goes to Edward Mwirigi Mbwiria in whole.

19. Looking at the history of LR. No. Nkuene/Taita/402 which has jointly owned by the deceased and 2 Others in the ratio of 1/3:1/3:1/3:. I do find that the one third which is now No. 2772 was registered in the name of the deceased in 1977 long before the 1st Applicant got married to the deceased and the mere fact that she may have cohabited in the said plot with the deceased cannot confer on her the right to inherit the said plot and deprived the 1st & 2nd widows of their entitlement and possibly sweat in supporting the deceased to acquire the plot.

20. The fear of being deprived of the plot, I believe drove them to claim the deceased had sold the plot to his daughter Christine Mukiri but evidence showed that the transfer was done long after the deceased had died and therefore the transfer was without the authority of the court. This court finds that in consideration that LR Nkuene/Taita/ 2772 was acquired before the 1st Applicant Lydia Karimi became apart of the deceased persons family the same will go to the 1st & 2nd widows of the deceased.

21. In the same breath, I do hereby distribute LR. No. Nkuene/L. Mukumbune/689 to Lydia Karimi to hold and share equally with her children. Edwin Mugambi, Mercy Gakii, Rosa Wanja & Moreen Gatwiri.

22. LR. No. Nkuene/L. Mukumbune/690 and 694 will go to Joanina Kaimiri Mbwiria to share equally with her children namely:-

1. Phineas Gikandi Mbwria

2. Rosemary Gikunda Mbwria

3. Agnes Karian

4. Christine Mukiri

5. Patrick Mugambi

23. LR. Nos. Nkuene/L. Mukumbune/561 and 562 is distributed to Julia Mugure Mbwiria to share equally with her children namely:-

i. Boniface Mutegi

ii. Caroline Gaiti

iii. Eunice Kathambi

iv. Agnes Ntinyari

24. Evidence in regard to Harriet Karimi and Caroline Gatwiri being the deceased persons daughters and therefore entitled to a claim of the estate didn’t come out very clearly and therefore I am not able to make any orders in regard to their entitlement. They didn’t also file any claim for consideration by the court.

25. As to claims by the sisters of the deceased the properties listed as belonging to the deceased were registered between 1977 and 1996 respectively and the said sisters didn’t prove that any of the parcels of land was ancestral land. I do therefore find that their claim of trust has not been proved and the same fails.

26. The application for confirmation dated 15th day of July 2019 is therefore allowed in the following terms:-

i. LR Nkuene/Lower Mukumbene/691 goes to Edward Mwirigi Mbwiria.

ii. LR. No. Nkuene/Taita/2772 to be shared equally between Joanina Kaimuri & Julia Mugure.

iii. LR. No. Nkuene/L. Mukumbune/689 to Lydia Karimi to hold and share equally with her children. Edwin Mugambi, Mercy Gakii, Rosa Wanja & Moreen Gatwiri.

iv. LR. No. Nkuene/L. Mukumbune/690 and 694 will go to Joanina Kaimiri Mbwiria to share equally with her children namely:-

-Phineas Gikandi Mbwria

-Rosemary Gikunda Mbwria

-Agnes Karian

-Christine Mukiri

-Patrick Mugambi

v. LR. Nos. Nkuene/L. Mukumbune/561 and 562 is distributed to Julia Mugure Mbwiria to share equally with her children namely:-

-Boniface Mutegi

-Caroline Gaiti

-Eunice Kathambi

-Agnes Ntinyari

27. Parties to bear their own costs.

Dated and signed at Mombasathis30thday ofDecember 2020.

HON. LADY JUSTICE A. ONG’INJO

JUDGE

DeliveredatMeruthis 28th day ofJanuary 2021

HON. LADY JUSTICE CHERERE

JUDGE