[2017] KEHC 2745 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 148 OF 1997

IN THE MATTER OF THE ESTATE OF THE LATE M’MARARA M’RWARA – DECEASED

MAGAMBO M’RWARA...................................................................PETITIONER

VS

M’MWORIA M’RWARA..................................................................OBJECTOR

AND

1. CHARITY MUGURE

2. JAMES RUCHUGO

3. SAMSON K. KIAMBI

4. MISHECK NKONGE M’MARANGU....INTERESTED PARTY/APPLICANT

RULING

This is the Intestate estate of the late M’Marara M’Rwara who hailed from Mwangathia Location in Meru County and died on 21st day of August 1988 leaving behind 2 sons namely M’Mworia M’Rwara and Magambo M’Rwara as per letter dated 13th February 1996 written by Chief of Mwangathia Location. The net intestate estate as per Chief’s letter is made up of 2 parcels of land L.R. Gitia 347 and L.R Kiija/362 which the Chief says the 1st parcel was due to Magambo exclusively whereas the 2nd parcel is to be shared between Magambo 2 acres and balance to M’Mworia who had been given 5 acres of land by the father in L.R. Gitia 265.

In the affidavit in support of petition filed by the 2 beneficiaries it appears there are 3 parcels of land listed as assets make up net estate namely:-

Abothuguchi/Kiija/362 1. 2 Ha.

Abothuguchi/Gitia/347 – 0. 25 Ha

Abothuguchi/L.Kiija/135 – 1. 6 Ha

Grant was made to M’Magambo M’Rwara on 22nd June 1999 and application for confirmation dated 1st December 1999 filed on 9. 12. 1999.

By an application dated 17th November 2000, Charity Mugure and 3 others filed an application as interested parties and sought that the Respondent – M’Mworia M’Rwara be restrained from chasing them from L.R. No. Abothuguchi/Kiija/362 and status quo be maintained;

That the Respondent be ordered to stop intermeddling with the deceased estate or selling the same.

That the Respondent be ordered to stop interfering with portions currently occupied by the applicants Charity Mugure was the wife to Magambo Rwara and (son to deceased) who died pending determination of the cause.

The Respondent in Replying Affidavit sworn on 26th February 2002 said he had no dispute that Charity Mugure was his late brother M’Magambo’s wife and he is survived by 3 sons 2 of whom are minors.

He claimed the Chief Samson K’Kiambi and one Misheck Nkonge M’Marangu are interfering with his late father’s estate and that is bone of contention as they want to grab land. He averred that his father died in 1971 and not 1998 and the Certificate of death is a forgery. He said he didn’t give consent to the petitioner and number indicated as his ID is wrong.

He said Letters of Administration should be made to him and his late brother’s son James Ruchugo – 2nd interested party. By an affidavit of protest sworn on 19th August 2006, Misheck Nkonge M’Marangu claimed he had bought 1. 5 acres of land out of Abothuguchi/Kiija/362 from the late Magambo which M’Mworia M’Rwara had failed to disclose in the petition.

He annexed an agreement for sale of land showing the consideration was Kshs 26,000/ and M’Magambo had acknowledged receipt of Ksh 4000, Ksh 6000, Kshs 3000, Ksh 5000, Ksh 2000 and Ksh 17,000.

Samson Kimathi Kiambi also filed affidavit in protest sworn on 19. 8.2006 as purchaser of 1. 5 acres of land out of L.R Abothuguchi/Kiija/362 for which he paid the late Magambo Kshs. 8,400, Ksh 1,600 and Ksh 17,000 as per annextures and affidavit M’Mworia M’Rwara instructed M/S Mwenda Mwarania Akwalu & Co. Advocates to represent him in the cause.

Justice Kasango on 29. 6.2010 ordered that Assistant Chief of Gitie sublocation or Ag Kiija Location writes through County Commissioner to identify legitimate beneficiaries and by a letter dated 16. 8.2010 the District Commissioner Meru Central District identified M’Mworia M’Rwara and M’Magambo M’Rwara(Deceased) as sons of deceased, represented by widow – Charity Mugure but also added that Misheck Nkonge M’Marangu and Samson K Kiambi were interested as purchasers. M’Mworia M’Rwara filed affidavit on distribution sworn on 30. 9.2016 in which he proposed that he and beneficiaries to his late brother M’Magambo M’Rwara share the estate equally. This was pursuant to application for issuance of grant and confirmation dated 30th September 2016.

James Ruchugo filed affidavit protesting the proposed mode of distribution by M’Mworia saying that M’Mworia received a gift inter vivos LR 265. It was swown by annextures that dispute on how to distribute the estate had been settled by consent before the Chief and D.O JRM 3 on 22. 2.1995.

In supplementary affidavit sworn on 24th August 2016, M’Mworia M’Rwara averred that Abothuguchi/Gitie/265 was a first registration and didn’t at anytime belong to his father and it is not true the deceased transferred to him.

That his late brother left behind 7 children and not 4 as James Ruchugo would want the court to believe;

He said 3rd interested party who was chief has fuelled dispute as he is interested in grabbing the estate land.

He said JRM 3 is a forgery authored by 3rd party who claims to be an elder from their clan and doesn’t come from their clan, village or sub location.

He denied having signed the annexture JRM 3.

He said parcel No. 147 purported to be shared between him and his late brother doesn’t belong to their late father. Certifcate of search shows it belongs to Mugambi Ruigi

To start with it is apparent that due to the death of M’Magambo M’Rwara who had been issued with Letters of Administration the estate herein remains unadministered and in that regard considering same has been pending for long this makes an order that the estate shall be administered jointly by M’Mworia M’Rwara and James Ruchugo to who the DR should issue Letters of Administration.

2ndly one of the deceased sons having died, the late Magambo M’Rwara’s surviving children should be able to take up his inheritance in equal shares unless they agree otherwise.

3rdly the property that is alleged to have been inherited inter vivos indicates that it was 1st registered in the name of M’Mworia M’Rwara and a part from the chief’s latter there is nothing else that shows it belonged to the deceased, James Ruchugo, Samson K. Kiambi and Misheck Nkonge M’Marangu filed affidavits in protest on which documents were annexed to prove their case and M’Mworia M’Rwara effectively and in my view very ably challenged the protests in his Replying Affidavit and supplementary affidavits and there is no rejoinder by the protesters to those affidavits. It was confirmed that the beneficiaries of the estate were M’Magambo M’Rwara now deceased in his absence his surviving children together with M’Mworia M’Rwara

From the annexture JRM 3A copy of minutes related to case no. 484 of 1987 M’Mworia M’Rwara and M’Magambo M’Rwara it appears M’Magambo M’Rwara had occupied M’Mworias shamba illegally and on 22. 2.95 M’Magambo agreed to move out of his elder brothers land. The dispute in court was over parcel No. L.R./Gither/265. This was to remain with M’Mworia. The minutes indicate “ My father’s other shamba to be shared as follows:

L.R. Kiija/362- 3 acres to be given to – M’Magambo

L.R. Gitie/347 to def-0. 86 acres

L.R Kiija/147-3. 90147 acres

Plaintiff – Balance

Def – 2 acres

The land referred to in the minutes doesn’t include No. L- Kiija/135.

It refers to L.R. Kiija/147

Abothuguchi/Kiija/362 was registered in the name of M’Mworia as 1st registration in 1972. 1st Registration – if anyone seeks to claim interest as customary trust.

L.R. /L-Kiija/135 – registered in deceased name on 12. 8.1988

362-Rwara Marara 1. 2 ha 22. 2.96

347 – Rwara Mara 0. 25 Ha 22. 2.96

Annextures to affidavit of protest by James Ruchugu Magambo show that only parcel No. 135 is in the name of the M’Magambo concurred and consent entered into and signed in presence of elders and District officer. Upon basis of this consent case No. 484 of 1984 is said to have been withdrawn. I have not accessed the said file and I can’t if the suit was withdrawn.

Giite 347

Kiija 362

According to Chiefs letter dated 13. 2.1996 – M’Magambo was given 347 & 362 and that parcel No. 137 – 2 acres to M’Magambo and balance to M’Mworia because he had been given no. 265 (Gitie) by the deceased during his life.

Gitie 265 or Abothuguchi/Kiija/362

Abothuguchi/Gitie/347

This court can’t rely on JRM 3 in absence of the author and/or a party who was present swearing affidavit about it as it is disputed by M’Mworia the Respondent herein.

Upon calling for green cards/certified copies of Register in respect of land parcels:-

a) Abothuguchi/Kiija/362

b) Abothuguchi/Gitie/347

c) Abothuguchi/Kiija/147

d) Abothuguchi/Gitie/265

e) Abothuguchi/Kiija/135

The District Land Registrar Meru by his letter dated 6th October 2017 forwarded the respective certified copies of the registers from which this court has established as follows:-

a) Abothuguchi/Kiija/362 was registered in the name of Rwara Marara on 12th June 1972 as 1st Registration.

b) Abothuguchi/Gitie/347 was registered in the name of Rwara Marara as 1st Registration on 24th November 1972

c) Abothuguchi/Kiija/147 is registered in the name of Mugambi Ruigi on 12th August 1988 as 1st Registration although there is mention of this particular parcel of land in James Ruchugo Magambo’s annexture JRM 3, it is not explained what relationship the registered proprietor has with the deceased or even the beneficiaries herein.

d) Parcel No. Abothuguchi/Gitie/265 is registered in the name of Mworia Rwara. Registration was done as 24th November 1972 and land certificate issued on 12th May 1977. There is nothing documented to show this land belonged the deceased and therefore it can’t be assumed that it is part of the deceased estate. The fact that Mworia Rwara owns another parcel of land can’t exclude him from inheriting from his deceased father’s estate.

e) Abuthuguchi/kiija/135 is registered in the names of Rwara Marara on 12. 8.1988.

Therefore the parcels of land that form part of parcel of estate herein are :-

1. Lower Abothuguchi/Lower Kiija/135 – 1. 6 Ha

2. Lower Abothuguchi/Kiija/362 - 1. 2 Ha

3. Lower Abothuguchi/Gitie/347 – 0. 25 ha

I have considered the protest to confirmation and affidavit in support by Jame Ruchugo Magambo as well as supplementary affidavit by M’Mworia M’Rwara and find they are not agreeing as distribution. By an order made on 27th 2010 it was established that the D.C. Meru Central District had identified M’Mworia M’Rwara and M’Magambo M”Rwara (Now deceased) as rightful heirs to the estate of M’Marara M’Rwara and Misheck Nkonge and Samson K Kiamba as buyers to the decease estate. The documents annexed to affidavits by said interested parties indicate they purported to purchase part of the estate from the late M’Magambo M’Rwara before Letters of Administration was confirmed to intermeddling with the intestate estate of the deceased. This court is seized with jurisdiction to distribute the estate of the deceased to the rightful heirs but not to interested parties/purchasers or whatever description they may have as the law of succession deems them to be strangers in the cause. The only recourse they have is to pursue the purported vendor upon their portions of the estate being distributed to them. The only equitable manner of distribution that this court considers reasonable in the circumstances is that the 2 beneficiaries share the estate equally. That is each to get half of each of the parcels unless they compromise otherwise to suit what is already on the ground.

Considering that the cause is brethren family members each party will bear own costs.

Ruling Signed ,Delivered and Dated this 11TH Day of October 2017.

HON. A.ONG’INJO

JUDGE

Mr Mwiti Advocate Holding Brief for Mwenda Mwarania for objector.

Mr Kiogora Arithi Advocate for petitioner

Penina – Court Assistant

Mr Mwiti

May objector be supplied with copy of Ruling.

Order

Application to supply copy of Ruling to Objector allowed upon paying copying charges.

HON. A.ONG’INJO

JUDGE