[2022] KEHC 13086 (KLR)

Mbaki & 3 others v Kiangati & another (Succession Cause 108 of 2016) [2022] KEHC 13086 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13086 (KLR)

Republic of Kenya

In the High Court at Murang'a

Succession Cause 108 of 2016

J Wakiaga, J

September 20, 2022

Between

Joyce Nyambura Mbaki & 3 others

Applicant

and

Grace Nduta Kiangati & another

Respondent

Judgment

Background 1. This cause has had a very chequered history within the corridor of justice. It historical background is therefore necessary for the purposes of this judgement.

2. The dispute herein was first filed in the District Magistrates Court at Kangema as succession cause no 171 of 1977, which cause was by an order of the High Court of Kenya at Nairobi in cause no 2527 of 2004 transferred thereto on May 31, 2005, which cause as will be made clear in this judgement was later on transferred to the High Court registry at Muranga after judgement.

3. In the meantime, there was a miscellaneous succession cause no 2514 of 1994 filed at Nairobi by one Gladys Mwihaki Kiangati (the mother of the current applicants against the respondent) which application was on February 24, 1997 dismissed for being double res-judicata.

4. For the purposes of this judgement it was be noted that the said decision was not based on the merits of the petition but on some applications which sought to enforce the decision of the land tribunals.

5. By a ruling dated December 2, 2014, the grant which had been issued to the respondent herein was revoked and by a judgement dared the same date, the Judge found as a fact that the applicable law in the dispute was kikuyu customary law and that the applicants were the children of the deceased and proceeded to subdivide the disputed property into the two houses of each of the wives of the deceased in equal shares, with each beneficiary not being removed from where they had occupied.

6. Since there was need to implement the said judgement, by an order dated March 30, 2016, the file was transferred to this registry and that is how it become the subject of this judgement.

Applications 7. By a notice of motion dated July 28, 2015, the respondents moved the court for stay of execution of the judgement herein and sought that the said judgement be reviewed and aa retrial ordered, which application was supported by the affidavit of Grace Nduta Kangati in which she deposed that petitioners herein had a history of serving fake court order and therefore when she was served with the hearing notice she sought the advice of the local administration who misled her into not receiving the same.

8. She contended further that the petitioners had not been keen on prosecuting the matter and that they obtained the judgement through the concealment of facts as they were not staying on the suit property since they were all married elsewhere and that their mother petitioned the court for the revocation and annulment of the grant which application was dismissed.

9. It was stated further that the deceased and his brother Mbaki Kigayu who had married the mother of the petitioners had separate pieces of land left for each one of them by their father Kigaya, registered as LR Loc 9/ Kanyeinyeini /1001 and 154, with the latter being registered in the names of the mother of the petitioners and her co-wife one wangechi mbaki. It was contended that the judgement of the Kangema Magistrates court granting her land was still in force.

10. On January 18, 2016, petitioners filed an application dated January 6, 2016 in which she sought for the rectification of the grant to appoint new administrators to the estate and to rectify the names of the beneficiaries to include them on the grounds that they were daughters of the deceased.

11. On November 28, 2016th Muchiri Kangati filed an affidavit in support of the application for review of the judgement herein on the basis that the learned Judge did not consider the judgements in civil case no 33 of 1997 Kangema SRM which was appealed against in Civil Appeal no 214 of 1998 Nairobi which appealed was dismissed for want of prosecution and that the issues in contention had been determined in Succession Cause no 2514 of 1994 and that the Judge added comments of her own when she realized that her judgement were not possible to implement at the Muranga Land registry.

12. By an application under certificate of urgency dated October 23, 2019 , the applicant Nancy Wangari Mbaki moved the court for the dismissal of the application for review of the judgement on the grounds that no effort had been taken to prosecute the same and in response thereof Muchiri Kaingati sworn an affidavit in which he deposed that they had made efforts to have the application set down for hearing through the filing of certificates of urgency thereon and therefore the application was premature.

13. On September 13, 2021 the petitioners appointed a new firm of advocates to represent them and further filed an affidavit in response to the application for review of the judgement, sworn by Nancy Wangari Mbaki, in which it was deposed that they had never served the applicant with fake documents and that the application was malicious with the intention of disinheriting them from the estate of their father who was legally married to their mother under the kikuyu customary law which allowed wife inheritance.

14. It was stated that they had all grown up in the suit property and that the land known as Kenyenyaini /154 was bought by the late Mbaki Kigaya and his first wife Wangechi Kigaya and did not form part of the estate. It was contended that the said Wangechi transferred part of her land to their mother as a gift since they had lived harmoniously in the said marriage and that being daughters of the deceased and beneficiary of his estate, they should be considered as such.

15. While that application was still pending determination, the respondent on October 29, 2021. Filed a notice of motion under certificate of urgency for the said application to be struck out and expunged from the record and that a hearing date be granted on the strength of the pleadings forming part of the court record and that the said application be dismissed for want of prosecution.

16. The application was supported by an affidavit sworn by Nancy Wangari Mbaka in which she deposed that the matter was fixed for hearing on September 28, 2021 but on the said date the applicant / respondent sought for leave to amend the application dated July 28, 2015 and was granted 14 days which she did not withstanding the fact that the said application was filed six years ago, and therefore the current application was brought in good faith and in the interest of justice the applicant/ respondent should be compelled to prosecute the matter failure of which it should be dismissed for want of prosecution and its pendency is preventing them from enjoying the fruits of the judgement as they continue to live as squatters in their fathers land.

17. In response to the application, the respondents’ advocate Mwaniki warima swore an affidavit in which he deposed that the application was vexatious frivolous incompetent and a gross abuse of the judicial process as the applicants were previously acting in person until they were referred to him by Kituo Cha Sheria and that they could not file the application before obtaining the judgement on record and that no prejudice will be suffered by the respondents if the application was allowed.

Directions. 18. When the matter was placed before me on December 2, 2021, it occurred to me that the applicants main contention in challenging the judgement on record was that the matter proceeded ex parte and therefore he did not have an opportunity to present his case for determination on the merit and having found as a fact that the same was duly served , however in the interest of justice I allowed the application set aside the judgement of Hon Justice Muigai and further directed that the application for revocation of grant be heard by way of oral evidence .

19. I also ordered that the parties file and serve their respective witness statements and amended the order granting letter’s of administration to Grace Nduta Kiangati and in its place issued letter of administration jointly to Grace Nduta Kiangati and Nancy Wangari Mbaki and revoked the transfer of the suit property to the applicant and reverted the same to the estate of the deceased and maintained the statuesque pending the hearing and determination of the cause.

Proceedings 20. At the hearing Grace Nduta Kiangati adopted her witness statement and testified on behalf of the protestors and stated that she was the only wife of the deceased having been married in the year 1975. She stated that the mother of the applicants known as Gladys was married to a brother of her husband called Mbaki Kiangati who had another wife called Marion and that when she was married she moved onto the suit property before moving to Nairobi and that when the house of the mother of the applicants was falling down, her husband allowed her to move into the land before he died in the year 1977 and after his death, Gladys chased her from the land and she went and rented a one room house where she lived for forty years.

21. Thereafter she went to the chief who called for a family meeting where she was allowed to use the land and was issued with a letter of introduction to enable her apply for letters of administration which was later on issued to both of them at Kangema Law Courts and in 1979 the title deed was issued in her favour and her three children. She then filed a suit at Muranga Law Courts for eviction of the mother of the applicants, which case was referred to arbitration where it was ordered that Gladys move out of the land only for the case to be changed that both of them should stay on the suit property and her titled cancelled at a time when she was not represented by an Advocate and thereafter al her child who used to follow up the matter on her behalf died.

22. She stated that the matter was thereafter referred to the High Court which ruled that the land was hers and the applicants moved to the Court of Appeal but the appeal was dismissed and when she went back to Kangema Law Courts to enforce the eviction order, the case was transferred to Nairobi and she then became sick and could not follow the case leading to the ex parte judgement of Lady Justice Muigai.

23. It was her evidence that the mother of the applicants had her own land which is number 1279 and that her co wife sold her land and moved out and therefore the court should declare that the suit land belongs to her. In cross examination, she confirmed that when the deceased married her, she had two children from a previous marriage and that the petitioners were children of her husband’s brother though by the time was married she didn’t find him and that their mother only moved into the house of the deceased when her house became dilapidated.

24. She confirmed that when she petitioned for grant of letters of administration, all the beneficiaries were indicated. She confirmed that Marion gave land to the mother of the applicants and that when she was married to the deceased she found the mother of the applicants living in his house.

25. On behalf of the applicants Nancy Wangari Mbaki stated that the deceased was their biological father having inherited their mother following the death of her husband Mbaki Kiangati who married her in the year 1950 before he joined Mau Mau. The deceased had by then not married and therefore when the objector was married, she came in as a second wife and that they lived on the suit property which was their grandfathers and that they were all born in the same house and even when the protestor was married she was not brought to the same property and neither wax she taken to Nairobi where the deceased was working at.

26. She stated that they were never served with any court documents and when their mother became sick and admitted in hospital, she was served with the eviction notice issued secretively from Kangemi Law Courts, she then filed an application for review of the said order on the ground that she was a beneficiary which allowed her application on the ground that she was the first wife of the deceased and referred the matter back to muranga which later refereed the same for arbitration to the chief who was a friend of the protestor who ruled that their mother should demolish their house and move out of the suit land and that is when their problems started.

27. When the report was presented to court, the court decided not to use the report and ordered that the land be shared between the two wives and their children. She stated further that their mother had filed a case in the year 1994 in the High Court at Nairobi which went to appeal and in the year 2002 their mother died before the case was heard. In the year 2004 they filed suit at Milimani as children and beneficiary of the estate of the deceased which the protestor filed to attend to and that she then demolished their house and that every time the matter was listed for hearing the protestor would not attend court.

28. She stated that their house was demolished at night when they were inside and that having seen their plight, Marion gave their mother part of her land as a gift and that when the deceased married the objector, he told them to now propagate the name of his dead brother and that the suit land is family land so that even if their mother had not married the deceased she would still have lived on the same land.

29. In cross examination, she stated that their mother had her first child with Mbaki in the year 1949 called Catharine Wambui , then Mary Wangari was born in 1952 before she followed in 1959 after her husband had been killed in Mau Mau war and the deceased then married their mother in the year 1955 he then died in the year 1977 and that they did not know of the filing of the succession Cause by the protestor until they were served with the eviction order. She stated that the initial letter of introduction for purposes of filing the succession cause was given to both their mother and the protestor.

30. She confirmed that their mothers co wife gifted her a piece of land since when she went back to her village, she became a very rich business woman and when she came back to sell land which she had bought in the village she decided to gift their mother part of her land where she planted tea I the year 1970 and that in the year 1978 the protestor came and took over the suit land having demolished their house which the deceased left them in.

Submissions 31. On behalf of the petitioners, it was submitted that the deceased died in the year 1977 before the enactment of the succession act leaving behind two wives, the mother of the petitioners whom he married under the customary law and the protestor who moved to court and obtained letters of administration through concealment of material facts that the deceased was married to the mother of the petitioners and that the objectors contention is that the petitioners are not the children of the deceased contrary to the determination by various courts that their mother was legally married to the deceased.

32. It was contended that the objector having obtained grants of letters of administration fraudulently, she cannot hold a good title to the estate. It was contended that contrary to the assertion by the objector, the practise of wife inheritance was practised among the Kikuyus as stated by Eugen Cotran in his book The Law of Succession and since the mother of the petitioners was a wife of the deceased they are entitled to the estate as was stated in the case of In re Estate of Warui (deceased) [2001] e KLR. To buttress this submission reference was placed on the case of In re Estate of Peter Gathogo (deceased) [2020] e KLR where the court stated that where the substantive law applicable where the deceased died before 1st of july 1981 was the written law and customs applicable as at date of death as applied against the provisions of the Constitution.

33. It was contended that married daughters are entitled to inherit the estate of their father as was stated in the case of Peter Karumbi Keingati & 4 others v Dr Ann Nyokabi Nguitthi &3 others [2014] eKLR and that all the children of the deceased are entitled to a stake a claim to the deceased estate as was stated in the case of in re estate of Solomon ngatia kariuki (deceased) [2008] eKLR.

34. It was finally submitted that Loc 9/ Kanyanyaini / 1280 does not form part of the estate of the deceased having been given to the mother of the petitioners as a gift by her co wife and therefore to exclude the petitioners from the estate on that basis would be an injustice the court was therefore urged to dismiss the objection and order that the estate be distributed equally.

35. On behalf of the objector it was submitted that the same tendered evidence to the effect that she married the deceased in the year 1975 at the time when he was living in Nairobi and that he had a bother who was married to the mother of the petitioners and her co wife called Marion and that the same had constructed a house on Loc 9/Kanyenyaini /1001 which the mother of the petitioners entered into when her house was in a dilapidated state and that in 1977 after the death of her husband she instituted a succession cause upon obtaining a letter of introduction from the chief and the title deed issued to her in the year 1978.

36. It was submitted that the petitioners mother then filed an application for review on the grounds that she was a legal wife of the deceased which the court declined to do and advised her to file an appeal which she did not peruse and that thereafter there followed a series of cases between her and the objector and that upon her death the petitioners filed the current suit in Nairobi which was later on transferred to this registry seeking revocation of grant.

37. It was submitted that the petitioners mother was married to the elder brother of the deceased known as Mbaki Kigayu who had two wives and that he died in the year 1949 leaving land reference no Loc 9/Keanyenyaini /154 which was later on subdivided into Loc 9/Kanyenyaini/1279 and 1280 respectively. It was contended that under Kikuyu customary law wife inheritance was not the norm.

Determination 38. In this matter, the following issues are identified for determination:a)Whether the applicants are beneficiary of the estate of the deceased and such are entitled to a share of his estate.b)How should the said estate be distributed in view of the courts finding in (a) above.c)Who should bear cost.

39. As submitted by the objector, this estate has been a subject of various court cases for almost five decades, with the first of the suit filed in the year 1977 at the senior resident magistrate’s court at Kangema being succession cause no 171 of 1977 where the trial court where for the purposes of this judgement the trial court made this finding of fact “it appears from the evidence that the deceased was married to two wives. Mrs Gladys and Mrs Nduta in the year 1954 and 1975 respectively. I don’t know the reason why the first wife Gladys Mwihaki had to be excluded in the judgement delivered on 24/2/1978.

40. This finding of fact in my mind would have solved the issues in dispute but just as that court stated I don’t understand why it did not. From the evidence tendered before me I find and hold that the mother of the petitioners was married to the deceased having inherited her following the of his elder death his elder brother. This finding is supported by the fact that when the objector was married to the deceased she found the same living in the house that the deceased had constructed and she remained living in the said house until after his death when the objector for whatever reasons decided to wage war against her.

41. There is uncontroverted evidence that the objector during the life time of the deceased continued living outside the suit property and only came into possession through a succession cause which was obtained by concealment of material facts as regard the existence of the petitioners and their mother and therefore the objector’s contention that wife inheritance was not the norm amongst the Kikuyu community cannot come to her aid in view of the legal trite from Eugene Cotran (supra).

42. Having found as a fact that that the petitioners mother was married to the deceased, it therefore logically follows that they are beneficiaries of his estate and as such are entitled to a share thereof.

43. The next issue is then how the estate should be distributed. In this I find guidance in the cases of in re Estate of Warui (supra) where the court stated that the estate should be divided in the respective houses in a polygamous marriage.

44. The other issue for consideration is how the court should treat the parcel of land known as Loc 9 / kanyenyaini / 1280 which was registered in the name of the petitioners’ mother. To answer this question, I take note that the objector did not tender in any evidence to show that it belonged to the estate of the deceased and neither did she tender in evidence that belonged to Mbaki Kigaya who first married the mother of the petitioners. The petitioners on the other had tendered un controverted evidence that the said land belonged to Marion Wangechi Kimani who was married together with their mother to Mbaki Kigaya who gave her part of her land as a gift having seen her plight at the hands of the objector.

45. It therefore follows that the said land is not part of the estate of Kaingati Kiganya and should not be taken into account when distributing the said estate. I am therefore not persuaded by the objector’s submission that the claim of the petitioners over parcel of land number loc 9/ Kanyenyaini /1001 amount to unjust and unfair enrichment.

46. Finally, I must say that the previous litigations were between the petitioners’ mother and the objector and that this present litigation is between the petitioners as children and beneficiaries of the estate of the deceased and the objector in that capacity and cannot be affected by the doctrine of resjudicata.

47. In the final analysis having heard all the parties and having taken into account the history of the matter and the time it has taken I hereby dismiss the objection herein and order ( A) that the suit property known as Loc 9/Kanyenyaini / 1001 be subdivided into two equal share for each house (B) the petitioners portion to be registered into their joint name (C) the objectors Portion to be registered in her name (D) the beneficiaries to stay where they have lived and not to be moved by the ordered subdivision.

48. Having appointed both the objector and the petitioners, they are at liberty to effect the judgement herein either jointly or severally.

49. On the issue of cost, this being a family dispute which has taken 45 years to resolved each party to bear their own cost.

50. It is the courts desire that this judgement brings to an end this long standing dispute.

DATED SIGNED AND DELIVERED AT MURANGA THIS 20TH DAY OF SEPTEMBER, 2022J. WAKIAGAJUDGEIn the presence of:-