[2022] KEHC 11844 (KLR)

Muiruri & another v Gitukui & another (Succession Cause 2223 of 2009) [2022] KEHC 11844 (KLR) (Family) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11844 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2223 of 2009

A Ali-Aroni, J

July 18, 2022

Between

John Mwangi Muiruri

1st Applicant

George Mwaura Muiruri

2nd Applicant

and

Beatrice Wanjiru Gitukui

1st Respondent

Teresia Njambi Elijah

2nd Respondent

Judgment

1. This case revolves around the Estate of Muiruri Mwangi who died on the 2nd of February, 2004 at the Kenyatta National Hospital.

2. On the 16th of October, 2009 Beatrice Wanjiru Gitukui and Teresia Njambi Elijah moved this court for grant of representation of the Estate of the deceased as the widow and sister in law to the deceased, respectfully.

3. In the said Petition the court was informed that the deceased was survived by 6 people namely;i.Beatrice Wanjiru Gitukui- widowii.Simon Munge Muiruri- soniii.Evans Njonge Muiruri-soniv.Charles Mwangi Muiruri-sonv.Allan Kamau Muiruri-son &vi.Lick Nelson Waweru Muiruri-son

4. No liabilities were listed and the assets left behind by the deceased were given a value of Kshs. 500,000/=. The said assets were listed as follows;i.Shares at Mugumo Farmers Coop Society Ltd.ii.Shares at Embakasi Ranching Co. Ltd.iii.Property Ithanga/Ngilelia/Block 1/14iv.Makuyu/Makuyu/Block 111/167v.Plot No. 57 in Kayole Services Scheme Plot No. A1-602 (Kayole Bidii Jua Kali Association).

5. There is no copy of the grant on the file though documents on record indicate that the grant was issued on the 5th of March, 2012.

6. Pursuant to an application dated 10th of August, 2012 the grant was confirmed and the properties shared between Beatrice and her children.

7. By the turn of events John Mwangi Muiruri and George Mwaura Muiruri describing themselves as the deceased’s children from his first wife filed summon for revocation of grant on grounds that the said grant was obtained by making of a false statement and by concealment from court of material information and secondly that the grant was obtained by means of untrue allegation of facts in that the 1st family of the deceased was excluded in the proceeding, consent of the said beneficiaries was not obtained and the co-administrator is a sister of the 2nd wife.

8. The applicants supported their application by a joint affidavit wherein they stated that in addition to the 1st Respondent the deceased left behind a 1st family comprising of;i.Margaret Wairimu Muiruri (widow) now deceased.ii.Jane Wanjiru Mwaura-daughteriii.Lucy Waithira Mburu-daughteriv.Hannah Nyambura Maina-daughterv.John Mwangi Muiruri-sonvi.George Mwaura Muiruri-sonvii.Beatrice Wanjiku Muiruri-daughterviii.Peter Murigi Wairimu-sonix.Bonface Kamande Wairimu-son &x.Judy Muthoni Wairimu-daughter.

9. Further they deposed that their mother died on the 15th of February, 2014 and at the time of her death was not aware that the 2nd widow had petitioned the court for a grant of representation of the Estate of the deceased. And that the 1st family had since 2012 made effort to have the 1st Respondent join them in petitioning for grant of letters of administration but she did not cooperate.

10. They deposed further that they recently learnt from one Patrick Mathenge that he bought Plot No. 57 Bidii Jua Kali from the 1st Respondent and were surprised to learn that a grant had issued to the 1st Respondent in their absence.

11. The application for revocation of grant was opposed by the 1st Respondent by way of a replying affidavit dated 22nd September, 2019 wherein she termed the application as being frivolous, vexatious, lacking in merit and full of deceit.

12. She deposed further that she is the only widow of the deceased and the deceased had no 1st family or other children and those claiming to be children of the deceased are unknown to her.

13. Further she averred that the alleged 1st family did not participate in the deceased funeral neither did they attend an affirmation that they were not his family.

14. Further she asserted, that if at all the claimants and their siblings happen to have been children of the deceased they had completely separated themselves from the deceased not to warrant a right to claim a share of the deceased Estate.

15. It was also asserted that the matter is late in court having been filed ten (10) years after the death of the deceased and long after the grant was confirmed. Further the deceased had gifted the assets inter vivos to the 1st Respondent and her children.

16. The matter proceeded by way of viva voche evidence and thereafter the court directed parties to file written submissions. By the time of writing this judgement only counsel appearing for the applicants had filed his written submissions.

17. Having considered the pleadings, evidence on record and submissions on record, the sole issue for determination is whether or not to revoke the grant issued to the Respondents.

18. PW2 Lucas Njunge Mwangi a brother to the deceased and his nephew PW3 Francis Kamau Ngugi both of whom the 1st Respondent acknowledges, informed the court that they knew the applicants as children of the deceased and confirmed that the deceased had two families.

19. According to PW2 his deceased brother had separated from his 1st wife due to domestic issues but that the deceased had acknowledged all her children as his. Further he informed the court that his brother married and paid dowry for the 1st Respondent who came with her own three children which the 1st Respondent equally admitted in evidence.

20. PW2 and PW3 further informed the court that the deceased initially stayed with his 1st family in Kayole, later 1st widow moved to Githurai where the deceased frequently visited.

21. Further the court was informed that the 1st Respondent was suspected to have inflicted fatal injuries on the deceased which led to his death, was arrested and placed in custody, and was not present during the preparation and burial of the deceased.

22. PW2 & PW3 corroborated the evidence of the 1st Applicant, they knew the 1st family and acknowledged them. They supported the evidence that the deceased remained close to the 1st family who were present and participated in the burial of their father & husband.

23. On his part PW1 stated that they fully participated in the burial of the deceased and produced as exhibits photographs taken at the burial of the deceased showing the 1st family participating in the burial ceremony.

24. On her part the 1st Respondent denied knowledge of the applicants. She informed court that she was married under Kikuyu customary law sometime in 1987 and sired three children of her five children with the deceased.

25. Further she stated that the deceased did not mention that he had another family before, he had no home in his ancestral home and that they acquired all properties during the substance of their marriage.

26. She confirmed having received summons from the chief in Muranga but chose not to attend. She also confirmed being summoned by the chief in Kayole but was willing to the proposed distribution of the deceased property with strangers.

27. The court finds that though the 1st Respondent denies that the deceased had another family prior to marrying her in 1987. The court is of the view that the evidence of PW1, PW2 and PW3 is credible and truthful as against hers. The deceased died in 2004 at the age of 63. In 1987 when he married the 1st Respondent he was 46 years, quite advanced in age and for a typical African would have had a wife and children. Did she not find out from him, his family or friends about his past? The narrative that the deceased was not visited much by family and they did not visit his ancestral home much does not assist the 1st respondent in pursuing her narrative. Indeed, PW3 said he was close to deceased, he would visit his uncle and they were neighbours. PW1 also said he visited the father and had met the 1st Respondent previously.

28. The above evidence in support of the applicants, coupled with the fact that the 1st Respondent failed to respond to the call by two chiefs, in Muranga and Njiru to settle this issue yet she knew what the subject of discussion, leads the court to believe that the 1st Respondent all along was in the know of the 1st family of the deceased but chose to leave them out of the succession process.

29. Assuming that the deceased did not make to known to the 1st Respondent of the said 1st family or even that she had not met them before the demise of the deceased which in not uncommon, does this then erode the entitlement of the deceased heirs? Obviously it does not.

30. The law of Succession Act Cap 160 of the Laws of Kenya has provided for situation of polygamous families where the deceased dies intestate.

31. The brother to the deceased PW2 alluded to the fact that the 1st wife of the deceased had left home due to domestic issues. The law still regards her as the deceased widow. Section 3 of the Law of Succession Act interprets wife to include “a wife who is separated from her husband…..” clearly therefore at the time the deceased died he had two wives. The 1st wife mother to the applicants and the 1st Respondent.

32. Section 40 of the Law of Succession Act provides for intestate polygamous situations as follows;1. Where an intestate has married more than 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.2. The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in Sections 35 to 38.

33. The law is clear that the two families ought to have shared the property left behind by the deceased based on the number of persons in each of the house. One family had 9, the other 5.

34. The petition as filed by the 1st respondent and her own sister entirely left out the 1st widow and her children. Their consent was never obtained at any point more so at confirmation and distribution. They were completely excluded.

35. Before concluding the matter, the court had earlier reserved its ruling as to whether the photographs produced in evidence by PW1, the 1st Applicant were admissible without an electronic certificate. The issue was raised by counsel for the 1st Respondent.

36. Prima facie, traditional photograph as the ones produced in court are admissible as secondary evidence. In Succession Case No. 243 of 2017 in the matter of the Estate of Washington Eliakim Olweny, Washington Olweny Odawa, Matheka J considered this issue at length, she stated;“An Electronic record is not defined under the definition section of the Evidence Act.I found these definitions: In Kenya Information and Communications Act no 2 of 1998“Electronic record” means a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in an information system or other medium;In the Government ICT Standards Electronic Records and Data Management Standard First Edition 2016Electronic records may be any combination of text, data, graphics, images, video or audio information that is created, maintained, modified or transmitted in digital form by a computer or related system.”……. from the evidence given by the 1st objector, there is nothing indicative that the photographs she was referring to were created, maintained, modified or transmitted in digital form by a computer or related system”

37. The Judge further referred to the case of Elizabeth Ongoro Amollo V Francis Kajwang Tom Joseph and 2 other (2017) eKLR where the learned Judge citing Zachariah B. Parry in an article ‘Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words at a Time’ published in the Journal of Law, Technology & Policy [Vol. 2009] 175 where a distinction was drawn between traditional photograph and digital photography and where it was stated:“Traditional photography is an analog science. Light enters through a camera‘s lens and the image the camera views is faithfully recorded onto a negative. This negative is then printed into a recognizable image.…Digital photography is the new norm for image capture. Digital cameras, in contrast to their analog complements, do not store information in a continuous medium. Instead, information is recorded in discrete bits of information called binary code, which is a string of ones and zeroes that makes up the storage language of hard drives, compact discs, computers, and all other digital devices. By using a series of numbers, instead of the continuous crests and troughs characteristic of analog information, digital image manipulation is much easier, cheaper, and infinitely more difficult to detect than an analog alteration.”…………Accordingly, whilst photographic evidence is admissible pursuant to Section 78 of the Evidence Act, there is a compelling basis to demand that, unlike traditional photographs, digital photographs must be carefully verified as electronic evidence under Section 78A of the Evidence Act given the distinction expressed by Zechariah, above.”

38. Nothing before court suggest that the photographs relied on are not traditional analogue photographs and that they were digitally produced. They appear to the court to be analogue photographs. The 1st Respondent’s counsel did not raise the question whether they were digitally produced so as to invoke Section 106 B.

39. For the above reasons the court admits the said photographs as exhibits in this case as there would not be any need for a certificate.

40. Based on the evidence above the court is persuaded and finds that the deceased had two families. The applicants are children of his 1st wife and the said 1st family ought to have been involved in the succession process. Thus the court finds it necessary to revoke both the grant and the confirmed grant.

41. Further the court directs All the titles and/or share certificates that may have been transmitted to other names do revert to the names of the deceased pending further orders of the court.

42. In the interest of justice and due to the age of the matter, the court proceeds in a bid to bringing the matter to a quick closure to appoint the 1st Applicant John Mwangi Muiruri, the 1st Respondent, Beatrice Wanjiru Gitukui and Lukas Njoroge Mwangi as administrators of the Estate herein.

43. The three administrators will ensure the properties revert to the Estate and will within the next 90 days file for confirmation of grant with a proposed distribution list jointly or severally for purposes of distribution.

44. This being a family matter, each party to bear their own costs.

DATED DELIVERED AND SIGNED AT GARISSA THIS 18THDAY OF JULY, 2022. ........................ALI-ARONIJUDGE