[2024] KEHC 4796 (KLR)

Matu v Muroria (Succession Cause 38 & 285 of 2015 (Consolidated)) [2024] KEHC 4796 (KLR) (8 May 2024) (Judgment)

Neutral citation: [2024] KEHC 4796 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 38 & 285 of 2015 (Consolidated)

LM Njuguna, J

May 8, 2024

Between

Cecilia Ngima Matu

Applicant

and

Rosemary Kithira Muroria

Protestor

Judgment

1. The matter for determination herein is an affidavit of protest dated 04th April 2016. Through the same, the protestor is opposing the mode of distribution proposed by the applicant in the Summons for Confirmation of Grant dated 21st March 2016 and the supporting affidavit thereof. The grant of letters of administration intestate was issued to both the applicant and the protestor. The applicant, through the summons for confirmation of grant, proposed that the estate of the deceased be distributed amongst the 2 wives of the deceased and their children as follows:a.Ruguru/Karuthi/580 1. 4 Ha to the Protestor;b.Gaturi/Githimu/7402 to the Applicant;c.Gaturi/Githimu/7403 to the Applicant;d.Mweiga/Block 3/ 273 to the Protestor;e.Mweiga/Block 3/ 274 to the Applicant;f.Gatung’ang’a Farm (Nyeri) measuring 10 Acres as follows:i.3 Acres jointly to the applicant, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba.ii.7 Acres jointly to the protestor, Ian Wang’ang’a, Elvis Mwororia.g.Kitengela Pharmacy Shop to the Protestor;h.Chaka Pharmacy Shop to the Applicant,i.50% of Slopes Hotel and Lodgings on Plot no. 1112/577 to the applicant;j.50% of Lodging and Rental Houses on Plot No. 1112/578 to the applicant and the protestor at 25% each;k.Motor Vehicle Registration Number KBR 982W to the applicant and the protestor;l.Money in bank account 10041302000027 at Consolidated Bank of Kenya to be shared amongst the applicant, the protestor, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;m.Proceeds from Prudential Life Assurance Kenya Limited to be shared equally between the applicant and the protestor; andn.Proceeds from Afya Co-operative Shared Fund to Andrew Wang’ang’a

2. In her affidavit of protest, the protestor deposed that the deceased died testate, leaving behind a written will dated 05th February 2013. That the named executor of the will, one Samuel Kiende Muthinji petitioned for a grant of probate in Nairobi Succession Cause No. 285 of 2015. That the parties agreed on 22nd October 2015 before the Deputy Registrar to proceed by way of viva voce evidence based on the fact that the estate was partially intestate. She deposed that the mode of distribution proposed by the applicant does not cater for the needs of creditors in the estate for the cumulative amount of Kshs.2,870,000/= and she proposed that these debts be paid out from bank account 10041302000027 at Consolidated Bank of Kenya. She contested the proposed mode of distribution and urged that the estate be distributed as indicated in the will of the deceased and added that any property not distributed in the will may be distributed through these proceedings.

3. It was the protestor’s case that the applicant was aware of the existence of the will and that she was even present when the will was read on 15th November 2014 by Mr. L. Kimathi, Advocate. That the deceased stated in his will that he inherited Gatung’ang’a Farm (Nyeri) from his father but the same was yet to be transferred to his names and so the farm cannot be distributed in this estate. That the will also states that the deceased had not yet completed registration formalities for parcel Number Ruguru/Karuthi/580 which he purchased, and the protestor stated that the said property should not form part of the estate of the deceased. That the applicant and the protestor both receive the deceased’s pension.

4. The court took viva voce evidence. PW1 was the applicant who relied on her witness statement in which she stated that at the time of his death, the deceased was survived by 2 wives namely, herself and the protestor and a total of 5 children. That the estate of the deceased comprised of the properties named in her proposed mode of distribution. She stated that parcel number Gaturi/Githimu/4128 does not form part of the estate of the deceased as the deceased transferred it to her in November 2005, before his death. That the protestor is not a beneficiary of the estate since she remarried. She stated that she married the deceased on 1981 and she produced a marriage certificate as proof. That their marriage was blessed with 3 children. That she did not know if the deceased had other children but it was rumoured that the protestor was in the picture.

5. It was her testimony that she received a phone call from one Ann Parkinyaro who informed her that the protestor was also claiming a portion of her deceased husband’s, Charles Parkinyaro’s estate, as his wife. That the said Ann had written a letter dated 25th August 2020 to the DCC Kajiado East over the matter and the same was read out in court and produced as evidence. On cross-examination, she stated that she is aware that the protestor raised the issue of a will and that the named executor of the will was a business partner of the deceased. That she did not know much about the children of the protestor but she included the protestor and her children in the petition for a grant of letters of administration.

6. She stated that the protestor lives on the deceased’s ancestral land where he was buried. That Samuel Kiende Muthinji had petitioned for a grant of probate in the estate of the deceased in light of the will but the file was transferred from Nairobi to Embu for determination since the estate of the deceased was the same as the one herein. That the businesses left by the deceased are being run by the applicant and the family of the deceased’s business partner but the protestor refused to get involved although the applicant has been updating her on the business. She stated that the deceased did not write any will to be considered by this court. That the protestor was left in charge of 2 chemists owned by the deceased in Kitengela and in Chaka and she keeps the proceeds to herself.

7. PW2 was Ann Nasirae Parkinyaro, who stated that following the death of her husband, Charles Parkinyaro, she was summoned to the office of the Deputy County Commissioner where the protestor had gone to allege that she was also a widow of the late Charles Parkinyaro and was claiming a part of his estate. That a friend of hers who knows the protestor informed her that the protestor has a similar case in this court, prompting her to volunteer her testimony to this case. That the protestor said that she was married to the late Charles Parkinyaro through customary law and that dowry had been paid, although she could not prove her allegations. That the protestor wrote a letter to the Deputy County Commissioner referring to PW2 as her co-wife. That during the lifetime of her husband, she did not know whether her husband had another wife. On cross-examination, she stated that it may be possible that the protestor had a relationship with her (PW2’s) husband but the same did not amount to marriage.

8. DW1 was the protestor who relied on the contents of her affidavit of protest. On cross-examination, she stated that she is disputing the proposed mode of distribution. That the deceased owned a building construction company with his son Anthony Wang’ang’a, he had a coffee farm with her which she partly manages and he had 2 chemists which closed immediately after his death. That he owned 50% of Slopes and Chrisan Hotels in Embu and after his death, his business partner Muthinji ran it for 38 months. That she was not involved in the running of the hotels since the death of the deceased’s business partner but she has received some payments from the said businesses. That the court ordered that a joint account be opened between herself, the applicant and Mrs. Muthinji but Mrs. Muthinji blocked her.

9. She stated that after the death of the deceased, she started a relationship with Charles Parkinyaro and they lived together for 6 years as husband and wife until he died. That when she learned that the family of the late Charles Parkinyaro was distributing his estate excluding her, she wrote a letter through her lawyer demanding for her portion since the deceased Charles Parkinyaro had married her through customary law and that he paid her dowry. That she placed a restriction on the land claiming her interest as a widow of the deceased and she is not willing to remove the encumbrance. That when she got married to deceased herein, she knew that he had another wife whom he had married in 1981 or 1982 but she remained married to him between 1999-2014 when he died. That in these proceedings, the matrimonial home of the deceased with his first wife, the applicant, is in Blue Valley estate and she is also claiming a portion of the said home.

10. It was her testimony that the deceased wrote a will which was witnessed by Samuel Kiende and Joseph Thiba. That the identification number of the deceased as seen on the will is wrong and that the will is typed save for the information of the witnesses which is handwritten. That all the properties of the deceased are written in the will save for the ones she has deposed in her affidavit of protest, namely; Kenya Airways Shares, the cyber café business at Slopes Hotel, Motor vehicle KAV 922W, KCB shares, money in Consolidated Bank of Kenya account, money in Barclays Bank account, money in 2 KCB accounts in Embu and money in the paybill number for Slopes and Chrisan Hotels.

11. She stated that she learned about the will after the death of the deceased when they were summoned for a family meeting by the applicant and an Advocate read it to the family. That the same advocate had visited the deceased in hospital one week before he died and the deceased introduced the advocate to them. She identified the signature of the deceased on the will and stated that he was of sound mind and knew all his properties. That the will seems not to have been written by an advocate and that the advocate who stamped the will is from Mombasa. She reiterated that it was the applicant who brought up the issue of existence of a will and that they agreed to share all the property that is not included in the will equally.

12. After the hearing, the court directed the parties to file their written submissions but only the applicant complied.

13. In her submissions, the applicant stated that she was married to the deceased in a Christian marriage ceremony in 1981 and they were not divorced when the deceased died. That the protestor claims that she was married to the deceased but does not disclose under which law. That the protestor has also laid claim on the estate of Charles Parkinyaro as his alleged widow, being married to him under customary law. She submitted that the protestor herself admitted that the will does not include all the properties of the deceased and that the will is invalid as it lacks material elements that validates a will.

14. She placed reliance on the case of Ngengi Muigai & Another v. Peter Nyoike Muigai & Another (2016) eKLR where the court discussed the validity of a will as provided under section 11 of the Law of Succession Act. That it is suspect that the deceased, who was an astute businessman and a civil servant, would fail to know the properties in his estate and include them in his will. She urged the court to find that the deceased died intestate and distribute the estate equally amongst them since it is not clear whether the protestor wants to go by testate or intestate succession. She placed further reliance on the provisions of section 35 of the Law of Succession Act.

15. From the foregoing, the issues for determination are the following;a.Whether the deceased died testate or intestate;b.Whether the protestor is a wife of the deceased herein for purposes of intestate succession; andc.How should the estate of the deceased be distributed?

16. According to the proceedings of the court on 03rd June 2015, the court was made aware of the testate succession proceedings in the estate of the deceased in Nairobi Succession cause No. 285 of 2015. The court ordered that the said file be transferred to Embu to be heard together with the cause herein. The petitioner of a grant of probate in Nairobi Succession cause No. 285 of 2015 together with the protestor herein, filed a notice of objection to the making of a grant dated 26th February 2015 in these intestate succession proceedings. The basis of the objection was that there is a pending petition for a grant of probate, which this court was not informed about.

17. When the matter went before the Deputy Registrar on 22nd October 2015, the court directed that the objection be heard by way of viva voce evidence. Soon after, the parties agreed that the applicant and the protestor be appointed as co-administratrix of the estate of the deceased and a grant of letters of administration be issued to them. This was done. At this point, the objection had not been heard and the protestor herein was still the 2nd objector to issuance of the grant of letters of administration intestate. The hearing was scheduled for 24th February 2016 but on the date of the hearing, the applicant’s advocate informed the court that the date had been erroneously taken and that there was no hearing to be conducted. Instead, the parties raised issues of maintenance of the school-going children and an account of the estate to be provided by the applicant.

18. There were series of applications seeking various orders and the court entertained all of them. There was no mention of the probate succession matters from there on and the objection raised by the executor of the alleged will was never prosecuted. There was no mention of this first objector until it was mentioned in the hearing of the protest that he passed away at some point before the grant of probate was issued to him. The applicant then proceeded to file summons for confirmation of grant and she proposed a mode of distribution, which is the subject of the protest before this court.

19. On the first issue for determination, it has appeared through evidence, that the petitioner of the grant of probate, who was also a business partner of the deceased, was appointed as executor of the will by the deceased. It is important to note at this point, that the testate succession file cannot be traced from the court’s registry. However, some of the pleadings regarding these proceedings were annexed to the pleadings herein. After consolidation of the 2 files, the executor did not pursue the testate succession proceedings. In fact, the executor/ petitioner for grant of probate, Samuel Kiende Muthinji was joined by the protestor herein in objecting the issuance of a grant of letters of administration intestate. In a case like this, it is important that the court establishes, as a matter of priority, whether the estate is testate or intestate. From the available evidence, the applicant stated that the deceased died intestate while the protestor stated that there was a will, even though she accepted to be appointed as an administratrix in the intestate estate. Since the testate and intestate proceedings were consolidated, I shall determine both scenarios herein.

20. PW1 stated that the deceased owned 50% of the businesses he ran with his partner the said Samuel Kiende Muthinji at Slopes and Chrisam hotels. She stated that the deceased did not leave a will that she is aware of. That if there is any will, the same is a forgery and that she suspects the protestor for such forgery. That she doubts the will is legitimate since the witnesses’ execution page for the witnesses is suspiciously on a separate isolated page. DW1 stated that the deceased wrote a will through an advocate and that the same was read out in the presence of the whole family including PW1. She stated that indeed the will has the deceased’s ID number captured with an error and that the execution page is on a separate isolated page.

21. From a perusal of the alleged will, both PW1 and DW1 stated that the ID number of the deceased was captured wrongly. The will is signed by the deceased on the second last page while the date and the witnesses’ signatures are on the very last page. From this, it is uncertain whether the witnesses signed the document in the presence of the deceased and vice versa, as the case should be. This issue could have been resolved through evidence of the witness known as Joseph Thimba and/or the Advocate L.Kimathi who was allegedly present during the making of the will. None of these people testified as to the legitimacy of the will. I am not persuaded that the will was properly signed as required under section 11(b)&(c) of the Law of Succession Act which provides thus:“(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.”

22. It has been alleged that some of the properties of the deceased were left out in the will. In addition to the fact that the deceased ID number is wrong, it is suspect that the deceased, who was a senior medical officer (therefore being well learned) could have made such omissions in his will. For these reasons, I do not think that there exists a valid will in this estate and so the whole estate of the deceased is to be determined as intestate.

23. The second issue for determination is whether the protestor is a wife of the deceased for purposes of succession proceedings herein. PW1 stated that PW2 called her and informed her that the protestor is also seeking to inherit as a wife of her deceased husband. PW2 stated that after the death of her husband, she was called by the Deputy County Commissioner who informed her that the protestor was claiming to be a wife of the deceased. DW1, the protestor, stated that she was married to the deceased herein between 1999-2014 when he died and that she knew that the deceased had another wife whom he married in 1981/1982 but that they had divorced. That after the death of the deceased herein, she got married to Charles Parkinyaro between 2014-2020 under customary law and that dowry was paid. That when her second husband died, she wrote a demand letter through her advocates Bw’Oigara, Getange & Company Advocates, claiming a part of the estate of the deceased as a wife. She did this in the pendency of the succession proceedings herein.

24. As to whether the protestor was a legitimate wife of the deceased herein PW1 testified that she acknowledged that the protestor and her children were her late husband’s second family, so much so, that she considered them in her proposed mode of distribution of the estate. DW1 testified that when she got married to the deceased, he had another wife and 3 children before her. The position in the Law of succession Act is that a wife of the deceased is protected only if she was married under a system of law that permits polygamy. The applicant produced a marriage certificate showing that she was married to the deceased through the African Christian Marriage and Divorce Act (repealed), which did not allow polygamy. The deceased, having already married under statute, was not permitted to subsequently marry the protestor again under customary law. That is to say, once married under the said statute, the marriage was monogamous and not potentially polygamous. Therefore, the protestor is not a legitimate wife of the deceased. However, the children of the deceased with the protestor are held as legitimate children for the purpose of succession.

25. Moreover, PW2 and DW1 both stated that DW1 was married to PW2’s husband for 6 years and after his death, DW1 moved to claim part of his estate as a wife. DW1 herself stated that she was married to PW2’s husband under customary law and that dowry was paid for her. I have perused the intestate succession proceedings in the estate of Charles Parkinyaro (deceased) in Kajiado Chief Magistrate’s Court Succession Cause no. E054 of 2022 and have noted that the protestor herein indeed raised a protest in that cause as a wife of the deceased therein.

26. Even assuming, for argument’s sake, that the protestor was a wife of the deceased herein, her right to inherit under Section 35(1) of the Law of Succession Act would have determined since there is proof that she remarried Charles Parkinyaro (deceased). It states:“(1)Subject to the provisions of section 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.”

27. As far as this court is concerned, and for the sake of the estate of the deceased herein, the protestor is not a legitimate wife of the deceased. In any event, the protestor has claimed a part of the estate of PW2’s husband as a wife therein.

28. This leads me to the third issue for determination of how the estate should be distributed. Having determined that the deceased died intestate and was survived by 1 wife and a total of 5 children, the intestate estate of the deceased is to be distributed according to section 35 of the Law of Succession Act which provides for where a deceased was survived by a spouse and child or children. That being said, the intestate estate of the deceased is to be distributed to the following beneficiaries:a.Cecilia Ngima Matub.Andrew Wang’ang’a Matuc.Anthony Githinji Matud.Caroline Nyacomba Matue.Ian Wang’ang’af.Elvis Mwororia

29. The protestor stated that some of the properties of the deceased were not included in the mode of distribution proposed by the applicant. These are Kenya Airways Shares, the cybercafé business at Slopes Hotel, Motor vehicle KAV 922W, KCB shares, money in Consolidated Bank of Kenya account, money in Barclays Bank account, money in 2 KCB accounts in Embu and money in the paybill number for Slopes and Chrisan Hotels. This being an intestate estate, these properties will be included in the distribution accordingly.

30. In the end, I find that the protest lacks merit and the same is hereby dismissed. The certificate of confirmation of grant shall be issued in the estate of the deceased, distributing the estate in accordance with section 35 of the Law of Succession Act amongst the applicant together with the 5 children of the deceased making up a total of 6 units, as follows:1. Ruguru/Karuthi/1001 to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;2. Ruguru/Karuthi/580 to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;3. Plot No. G/G 4127 (Majimbo House A) to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;4. Plot No. G/G 4128 (Majimbo House B) to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;5. Motor Vehicle registration Number KAJ 807Z to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;6. Gaturi/Githimu/7402 to Cecilia Ngima Matu;7. Gaturi/Githimu/7403 to Cecilia Ngima Matu;8. Mweiga/Block 3/Kimenju/272 to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares9. Mweiga/Block 3/Kimenju/273 to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;10. Mweiga/Block 3/ 274 to Cecilia Ngima Matu;11. Gatung’ang’a Farm (Nyeri) measuring 10 Acres as follows:iii.7 Acres jointly to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba in equal shares.iv.3 Acres jointly to Ian Wang’ang’a and Elvis Mwororia in equal shares.12. Kitengela Pharmacy Shop to Ian Wang’ang’a and Elvis Mwororia;13. Chaka Pharmacy Shop to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba in equal shares;14. Slopes Hotel and Lodgings on Plot no. 1112/577 to be distributed as follows:i.35% to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba in equal shares;ii.15% to Ian Wang’ang’a and Elvis Mwororia in equal shares; andiii.50% to the estate of Samuel Kiende Muthinji (deceased).15. Lodging and Rental Houses on Plot No. 1112/578 to be distributed as follows:i.35% to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba in equal shares;ii.15% to Ian Wang’ang’a and Elvis Mwororia in equal shares; andiii.50% to the estate of Samuel Kiende Muthinji (deceased).16. Motor Vehicle Registration Number KBR 982W to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia in equal shares;17. Money in bank account 10041302000027 at Consolidated Bank of Kenya to be shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;18. Proceeds from Prudential Life Assurance Kenya Limited to be shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;19. Proceeds from Afya Co-operative Shares Fund to be shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba;20. Kenya Airways Shares to be liquidated and shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;21. Kenya-Re Shares to be liquidated and shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;22. KenGen Shares to be liquidated and shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;23. Evans Building and Construction Company to Andrew Wang’ang’a;24. Cybercafé business at Slopes Hotel to be distributed as follows:i.35% to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba in equal shares;ii.15% to Ian Wang’ang’a and Elvis Mwororia in equal shares; andiii.50% to the estate of Samuel Kiende Muthinji (deceased).25. Motor vehicle KAV 922W to be sold and the proceeds be distributed equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;26. KCB shares to be liquidated and shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia;27. Money in 2 KCB accounts in Embu to be shared equally amongst Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji, Caroline Nyacomba, Ian Wang’ang’a and Elvis Mwororia; and28. Money in the paybill number for Slopes and Chrisam Hotels to be distributed as follows:i.35% to Cecilia Ngima Matu, Andrew Wang’ang’a, Anthony Githinji and Caroline Nyacomba in equal shares;ii.15% to Ian Wang’ang’a and Elvis Mwororia in equal shares; andiii.50% to the estate of Samuel Kiende Muthinji (deceased).

31. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 08TH DAY OF MAY, 2024. L. NJUGUNAJUDGE........................................for the Applicant........................................for the Protester