[2016] KEHC 2150 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 354 OF 2015

(FORMERLY CHUKA SPM SUCC. CAUSE NO. 95 OF 2013)

IN THE MATTER OF THE ESTATE OF ELIUD KAMUNDE

M'MWIRABUA - (DECEASED)

AND

MERCY KAGIGE KAMUNDE..............................................................PETITIONER

VERSUS

ELIPHAS MUGAMBI KAMUNDE.............................................1ST PROTESTOR

ELIPHELET MICHENI KAMUNDE...........................................2ND PROTESTOR

KAMUNDEH KIMATHI MWIRABUA......................................3RD PROTESTOR

MARYSTELLA GAKII MUTEGI................................................4TH PROTESTOR

J U D G M E N T

1. EKM died at Kenyatta National Hospital on 17th February, 2012. He was survived by a widow, two (2) daughters and seven (7) sons. On 5th June, 2013, MKK the widow (hereinafter "the Petitioner") lodged a Petition for Letters of Administration Intestate. In form No. P & A 5, the Petitioner disclosed all the beneficiaries of the deceased. She also disclosed Mwimbi/North Mugumango/[particulars withheld] ("plot No. [particulars withheld] ") as the only asset of the deceased.

2. The grant was issued to her on 25th October, 2013 and on 23rd March, 2016, she applied for its confirmation, adding other properties to the estate and proposed distribution as follows:-

a) LAND PARCEL NO. MWIMBI/S.MUGUMANGO/[particulars withheld]2 measuring approximately 3. 55 Ha to be shared as follows;-

i.MKK - 2. 35 Ha

ii. DWK - 0. 80 Ha

iii.KMK - 0. 40 Ha

b)LAND PARCEL NO.MWIMBI S.MUGUMANGO.[particulars withheld] - 0. 81 Ha

i. MKK - Whole

c) LAND PARCEL NO. MWIMBI/S.MUGUMANGO/[particulars withheld] -0. 07 Ha

i. MMK

ii. EEMK Equally

d) LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] -0. 81Ha

i. FNK - Whole

e) LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] [par-0. 40 Ha

i. ENK - Whole

f) LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] - 0. 40 Ha

i. ENK - Whole

g)LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] - 1. 01 Ha

i. EMK - Whole

h) LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] - 0. 40 Ha

i. EMK - Whole

i) LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] - 0. 40 Ha

i. EMK - Whole

j)LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withheld] - 0. 81 Ha

i EMN (minor) - Whole

k) LAND PARCEL NO.MWIMBI/S.MUGUMANGO/[particulars withelld] - 0. 81 Ha

i. KKM - Whole

3. On 5th April, 2016, EMK , EMK , KKM and MGM (hereinafter "the Protestors") protested against the proposed distribution. They contended that the Petitioner’s proposal would disinherit the 4th Protestor and LK as well as their children who are widows of the late NK and DK, respectively who are sons of the deceased. They alleged that the Petitioner had intentions of selling portions of the estate land to her favourite son Dr. Fredrick Njeru Kamaundi and that the said FNK andEN K were taking advantage of the age of Petitioner which stood at 83 years and frail health to manipulate her. The Protestors therefore urged that two of them, EM and EM , be appointed as co-administrators of the estate of the deceased. They also gave their own proposal how they wished to see the estate distributed.

4. The Petitioner opposed the Protest and filed Affidavits sworn by her and two (2) of her sons, Dr. FNK and ENK . In those Affidavits, it was claimed that the Petitioner’s mode of distribution was in accordance with the wishes of the deceased; that DKK was left out because there were issues with his identity card; the Petitioner denied that she is senile at 83 years or that she was being manipulated by two (2) of her sons.

5. Directions were made to the effect that the parties file their respective Affidavit evidence as well as that of their witnesses on which they could be cross-examined. In their Affidavits, the Protestors alleged that on of their brothers the late NK had a son by the name of EMN whose whereabouts is unknown; that the deceased had formed a family welfare group known as KKC (K K & C) which run the affairs of the deceased's family both during and after his lifetime. That the deceased had subdivided all his properties and settled all his children in all his properties except LR plot No. 2052 wherein he had lived with the Petitioner till his demise. That he had indicated that Dinah Wanja should get one (1) acre in plot No.2052 and the rest be divided equally amongst his sons. That since the late NK was married to the 4th Protestor with whom he begot two children, the surviving son JJGN should inherit the portion meant for his father. That after the demise of NK, the Petitioner together with EN started to harass the 4th Protestor in order to disinherit her Mwimbi/S.Mugumango/[particulars withheld].

6. In her Affidavit evidence, the Petitioner contended that since there was no formal application to revoke the grant, she should be retained as the administrator; that there was a greater agreement on distribution on most of the properties. That she was entitled to inherit plot No.2052 where she lives. She denied having any intention of later distributing her share of Plot No.2052 to Dr. Fredrick Njeru and EN as alleged. That EMN was a form 4 student at School and should inherit Mwimbi/S.Mugumango/[particulars withheld] with the 4th Protestor in equal shares. She denied any need for any DNA tests to confirm the paternity of the said EMN .

7. Although the deponents of the Affidavit evidence were to be cross- examined on them as directed, Mr. Mugo and Mr. Ithiga learned Counsels for the Protestors and the Petitioner, respectively indicated that they should be allowed to submit on the said Affidavit evidence without the makers being cross-examined. Their request was acceeded to by the court and they both filed their written submissions which are on record. Further, on 18th July, 2016, the Advocates filed a consent whereby all the properties of the deceased were distributed except two; namely plot Nos. 2050 and part of 2052. The parties agreed that 1. 2 Ha of Plot No. [particulars withheld] distributed to DW and KMK. The dispute was only on the balance of 2. 35 Ha thereof. Each Counsel filed his own set of issues.

8. Having carefully considered the Affidavit evidence on record, the submissions of Counsel and the sets of issues submitted by learned Counsel, my view is that the issues for determination in this matter are:-

a) How should the share of the late NK be distributed?

b) How should the balance of 2. 35 ha in LR Mwimbi/S.Mugumango/[particulars withheld] be distributed?

9. On the first issue, it is the Protestors who first introduced EM on the scene as a son of the late N NK . They stated that his mother left with him in 2000 and that his whereabouts was unknown. The Protestors had no objection if the said child came to court and staked a claim in the share of NK. They later however indicated that a DNA on him should first be undertaken. On the other hand, the Petitioner disclosed that the said EM was alive and was a form 4 student at School. She had indeed distributed to him the entire of plot 2050 leaving out the 4th Protestor who was the wife of the late Njue Kamunde as at the time the latter passed on in 2012.

10. From the foregoing, it is clear that EMN was a child of the late NK . That the 4th Protestor and her son JN survived the late NK. Apart from the fact that both the parents of EMN are dead, which will complicate the issue of DNA tests as suggested by the Protestors, it is not in dispute that the parties were agreeable that EMN was a son to the late NK . Accordingly, the request for DNA tests on him to confirm paternity has no basis and is rejected. He is entitled to inherit a share of his father in plot No. 2050. In this regard, this court makes a finding that the late NK was survived by the 4th Protestor and two sons, EMN and JN.

11. As to the distribution of Plot No.2050, Mr. Ithiga for the Petitioner submitted that the late N should be taken to have had two houses which had one (1) son each. That Plot No.2050 should be divided equally between the two houses. On his part, Mr. Mugo for the Protestors submitted that the said property should be distributed to the widows of the late Njue Kamunde and his two (2) sons in equal shares. Having considered the opposing arguments, this court seeks guidance in the provisions of Section 40 (1) of the Law of Succession Act which provides:-

"40(1) Where an intestate has married more that 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." (underlining mine)

12. It is not in dispute that NK married twice and is survived by two (2) sons, EMN and JN representing each house. However, the 4th protestor survived him as a spouse and under section 40 (1) aforesaid she constitutes an additional unit to the number of children, making it three (3) units. This court is alive to the fact that it is not the estate of the late NK that is up for distribution but since his share and interest in the deceased's estate is not disputed and for purposes of expedited justice under Article 159 of the Constitution this court has decided to pronounce itself on the share of the late NK in the estate of his late father. Accordingly, plot No. 2050 is to be inherited by the 4th Protestor, EMN and JN in equal shares.

13. The next issue is the balance of 2. 35 ha in plot No.2052. According to the Protestors, the deceased had expressed his wish that Dinah Wanja gets one (1) acre on plot No.2052 and the balance be distributed equally between his sons. That this can be discerned from the minutes of family welfare group "KKC"which are in the custody of EK. In support of the Protestors case, Mr. Mugo submitted that the Petitioner was now too old at 83 years to put the said 2. 35 ha (equivalent to 5. 8 acres) to any meaningful use. That the Petitioner should be given 0. 80 ha and the balance be divided equally amongst the sons. However, the Petitioner contended that after the deceased had settled all his sons on his other properties, he left plot No. 2052 for her use and her daughters. That she needs the same for her upkeep as she has no other source of income. Mr. Ithiga for the Petitioner submitted that the Petitioner ekes out her living from the property; that to divide the balance of 1. 55 Ha to the sons alone including NK who is deceased and leave out the daughters is not only unfair and discriminative but also unconstitutional. Counsel relied on the case Re Estate of DorisWanjikuJohn Mwigaruri [2015] eKLR in support of the proposition, that it is unfair to subject a surviving spouse to the consent of the children when she requires to sell part of the estate. Counsel urged that the 2. 35 Ha be distributed to the Petitioner.

14. The Petitioner is the widow of the deceased. Under Section 35 of the Act, she is entitled to a life interest in the net estate of her deceased husband. Section 35 (1) of the Act provides:-

"35(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 intestateestate:Provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person."

15. It is not in disputed that the deceased subdivided all his properties and settled all his sons thereon. He left out plot No. 2052 intact but is said to have made a provision for one of his daughters in respect thereof . This court's view is that the deceased must have intended that plot No.[particulars withheld] be left to take care of his wife, the Petitioner. Indeed the remains were continued to live with the Petitioner on that property until his demise. His remains were was interred thereon. The parties have agreed and distributed 1. 20 Ha out of the said property. The issue is what to do with the remaining balance of 2. 35 Ha.

16. The effect of section 35 (1) of the Act is that the property that forms the net estate of an intestate be preserved for the children. That is why under section 37 of the Act, the surviving spouse who enjoys a life interest over the net estate cannot dispose off any such property or any part thereof without the consent or concurrence of ALL the children and the court. Indeed for immoveable property, the consent of the court is mandatory. In this regard, whilst the surviving spouse has priority over the property of a deceased's spouse, in that such a spouse is entitled to a life interest thereon and that distribution of the estate is subject to such life interest under section 35,if a share thereof is given to such a spouse in distribution absolutely, such a spouse can deal with it freely without the sanctions set out in section 37 of the Act. The law allows the spouse to dispose property of the estate in order to maintain oneself but only with the consent of the children and court. In the case of Tan Katungi .v. Margrethe Thorning Katungi & Another[2014] eKLRMusyoka J expressing himself on the effect of section 35 of the Act stated:-

“The effect of section 35 (1) is that the children of the deceased are not entitled to access the net estate so long as there is surviving a spouse. The children’s right to the property crystallizes upon the determination of the life interest following the death of the life interest holder or her remarriage. Prior to that, the widow would be entitled to exclusive right over the net estate. This means that if the net estate is generating income she would be the person entitled exclusively to the income so generated.

The device is designed to safeguard the position of the surviving spouse. The ultimate destination of the net intestate estate where there are surviving children is the children. It is the children who are entitled of right to the property of their deceased parent. However, if the property passes directly to the children, in cases where there is a surviving spouse, he or she is likely to be exposed to destitution. This would particularly be the case where the surviving spouse was wholly dependent on the departed spouse. She would be left without any means of sustenance. The other aspect is that life interest ties up with the concept of matrimonial property; the said property would in most cases be part of property acquired during marriage and with the contribution of the surviving spouse. Direct devolution of such property to the children would deny the surviving spouse of enjoyment of their own property.” (underlining mine)

17. As regards, the limitations set out in section 37 of the Act, Mativo J in the case of Re Estate of Doris Wanjiku John Mwigaruri Alias DorisWanjiku held:

" Life interest confers a limited right to the surviving spouse over the state. He or she does not enjoy absolute ownership over the property. They cannot deal with it as if it was their own. By virtue of Section 37 of the Act, a surviving spouse cannot during life interests dispose of any property subject to that life interest without the consent of all the adult children, co-trustees and the court. This is meant to safeguard the interest of the children who are the ultimate beneficiaries of the property of the subject of the life interest. It is in this respect that the life interest operates as a trust over the property the subject thereof, a trust held by the surviving spouse for the benefit of the surviving children."

18. In view of the foregoing, although a surviving spouse enjoys a life interest over the net estate, that right has limitation. The property over which a life interest is exercised is held for the benefit of the children. this is so because, by virtue of section 35 of the Act, a trust is created over such property. The children can only access such property at the instance of the surviving spouse. On the other hand, the spouse exercising or enjoying a life interest is restricted from disposing it.

19. In the present case, the parties do not seem to agree on what is to be done to 2. 35 Ha that remains of plot No. [particulars withheld] . In the case of Justus Thiora Kiugu,& 4 Others .v. Joyce Nkatha Kiugu & Another [2015], the Court of Appeal pronounced itself as follows regarding section 35 of the Act:-

"We have wondered as a court time without number why the distribution of an estate such as this one would be protracted. What legal or even moral justification would compel children of the deceased to object their mother, the only widow of the deceased from obtaining the grant of letters of administration over their father's estate? Secondly why was the estate not distributed simply as provided for under section 35 of the Law of Succession Act......................we appreciate that an estate of a deceased person who died intestate leaving one spouse and children like in this case of MM cannot legally be distributed in any other way other than the parties agreeing among themselves and filing a consent, or by the court following the provisions of section 35 of the Law of Succession. In the event that parties agree and they record consent on the mode of distribution, the court has no choice but to adopt the consent and make it an order of the court. Short of a written consent on the mode of distribution, the court has no discretion but to distribute the estate of the deceased as per the provisions of section 35 of the Law of Succession which makes provisions for an intestate who has left one surviving spouse and child or children." (underlining mine)

20. In view of the foregoing, it is clear that there may not be jurisdiction to distribute the net estate that the surviving spouse has a life interest in. In the Justus Thiora Kiugu case (supra), the Court of Appeal registered all the properties of the estate in the name of the surviving spouse to hold in trust for herself and the children of the deceased in equal shares. In this regard. I will do likewise in the present case, save for the part of the estate where the parties have agreed.

21. Accordingly, the estate of the deceased will be distributed as follows:-

(a) Mwimbi/S.Mugumango/[particulars withheld]

(i) Mercy Kagige Kamunde - life interest on 2. 35 Ha and to hold in trust for all the children of the deceased in equal shares.

(ii) DWK - 0. 80 Ha

(iii) KMK - 0. 40 Ha

(b) Mwimbi/ S.Mugumango/[particulars withheld]

Mary Gakii Njue to hold on her own behalf and on behalf of EMN and JN in equal shares until the latter reach age of majority.

(c) Mwimbi/S.Mugumango/[particulars withheld]-

DKK

(d) Mwimbi/S.Mugumango/[particulars withheld]-

MKK

EEMK

(e) Mwimbi/S.Mugumango/[particulars withheld]-

FNK

(f) Mwimbi/S.Mugumango/2047 and [particulars withheld]

ENK

(g) Mwimbi/S.Mugumango/[particulars withheld] -

EEMK

(h) Mwimbi/S.Mugumango/[particulars withheld]

EMK

(i) Mwimbi/S.Mugumango/[particulars withheld]

KKM

It is so decreed.

DATED and delivered at Chuka this 3rd day of November, 2016

A.MABEYA

JUDGE