[2022] KEHC 13398 (KLR)

Mutua v Mutua (Succession Cause 808 of 2010) [2022] KEHC 13398 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13398 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 808 of 2010

GV Odunga, J

October 5, 2022

Between

Charles Muasa Mutua

Applicant

and

Rhoda Ndunge Mutua

Protestor

Ruling

1. By summons dated November 9, 2019, the 2nd administrator herein, Charles Muasa Mutua, sought that the grant made herein on June 21, 2018, to Rhoda Ndunge Mutua and Charles Muasa Mutua be confirmed.

2. The summons were however opposed by an affidavit of protest sworn by Rhoda Ndunge Mutua on 14th January, 2019. According to her the deceased left 5 properties out of which 2 properties were sold to third parties. She however denied that the deceased who as her husband sold any property to James Kinara Isoe as alleged by the applicant and that the document alleged to have been signed by the deceased was not signed by him. She proposed that the reminding properties be divided equally between the two households. It was her contention that it was her who bought Land Parcel no Machakos/Kiandani/XXX on which she had carried out some farming and proposed that she be allowed to retain the same though that property had not been transferred into the name of the deceased. She further disclosed that the deceased had directed that parcel no XXX Kiandani be their matrimonial home and all the children were directed to move out of the land which she proposed that should be retained by herself.

3. It was her case that plot nos XXXX, XXXX and XXX Wamaa do not belong to the deceased and should not be included in the grant

4. In reply to the protest, the applicant denied the allegations made by the protestor and averred that the protestor had suppressed material facts with a view to enriching herself.

5. In her evidence, the protestor stated that the deceased as her husband while the applicant was her step son. It was her evidence that the deceased had two wives while she as the second wife. She wholly relied on her affidavit of protest. She insisted that the signatures alleged to have been made by the deceased and relied upon by the applicant were forgeries. She stated that she complained to her advocates about the said forgeries. She insisted that plot no XXX was purchased by her and she had the agreement showing that fact. It was her evidence that she was with her husband when she was purchasing the same property but admitted that her name was not in the agreement and that it was signed by her husband on her behalf.

6. The protestor insisted that the deceased gave her land parcel no XXX when he was alive and told all the children to vacate. It was her evidence that one of the sons, Patrick Mumo, left and returned after the death of the deceased.

7. The applicant, Charles Muasa Mutua, relied on the affidavits on record and added that the protestor was her step mother. He stated that his mother was called Beth Syokau Mutua, also deceased. In his evidence, he is the one closest to the deceased who disclosed to him all his properties and told him how he wanted the same distributed since he was purchasing land for his second wife. According to him, the deceased gave him plot XXX Kandani which he started cultivating and constructed there while he distributed the other properties to his respective sons. It was his case that the deceased sold some of the properties to third parties with whom they had no problem. They also had no problem with the properties occupied by the protestor.

Determination 8. I have considered the summons for confirmation, the affidavit of protest and the reply thereto and the submissions filed.

9. In this case, it is clear that the deceased died intestate and he was a polygamous man.

10. Section 40 of the Law of Succession Act provides that:-“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 next 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.”

11. This provision was extensively dealt with by the Court of Appeal in Scolastica Ndululu Suva vs. Agnes Nthenya Suva [2019] eKLR where the court expressed itself at paras 15-21 as hereunder:“InMary Rono vs Jane Rono & another (supra), Waki JA in the leading judgment, accepted the proposition that the court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis. In the same judgment, Omollo JA stated the position more clearly as follows:‘My understanding of that section is that while the net intestate estate is to be distributed according to houses each house being treated as a unit, yet the judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that they must be equality between houses they would have been no need to provide in the section that the number of children in each house be taken into account. Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work injustice particularly in the case of a young child who is still to be maintained, educated and generally seen through life. If such a child whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equality.’InDouglas Njuguna Muigai & vs John Bosco Maina Kariuki & another (supra) this court noted the absurdity of a blind application of section 40(1) of the Law of Succession Act as follows:‘Back to section 40(1) of the Law of Succession Act, that provides that a widow shall be considered as a unit alongside the children of the deceased when it comes to the distribution of the deceased’s estate. In this case, Jerioth Wangechi the first wife of the deceased who even participated in the dowry negotiations for her co-wives is equated to the last born child of the 3rd wife of the deceased. Her contribution and support to the deceased as a spouse is not recognized and, in our view, that failure to recognize her contribution is tantamount to discrimination.’It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate. In regard to the question whether the respondent contributed towards the purchase of the two (2) properties, the trial judge had this to say:‘The protester testified that she was married to the deceased in the year 1983 and found the applicant already married to the deceased. She further stated that she found the two properties in issue herein had already been acquired, though she was not sure of the exact year of the acquisition. It was her testimony that at the time of her marriage to the deceased she found him living together with the applicant on the same land. It is thus safe to hold that the protester never contributed to the purchase of the two properties herein. It also emerged that the applicant herein was gainfully employed as a teacher in the year 1973 and retired in the year 2005. It was admitted by the protester and her witness Johnson Musyimi Suva that the applicant was working as a teacher when the deceased bought the parcels, she signed one of the agreements as the purchaser. I accept her evidence that she contributed financially towards the acquisition of the two parcels; Kathekani/76 and Kathekani/730. In the circumstances, it would be unfair to share the proceeds half - half between the two (2) widows of the deceased, or to find that each beneficiary should get equal proceeds of the share.’On our own evaluation of the evidence, we are entirely in agreement with the conclusion that the trial judge arrived at that the respondent contributed financially to the acquisition of the two properties. We are alive to the fact that what was before the learned judge was a succession cause and not a matrimonial dispute. However, the succession cause was anchored on the matrimonial circumstances of the deceased. The fact that the deceased acquired the two (2) properties during the subsistence of his marriage to the respondent, before the appellant came into the scene, and the fact that the respondent was employed, clearly, supported her allegation that she contributed to the acquisition of the two (2) properties. It would not therefore be fair nor just to treat the appellant and the respondent equally in the distribution of the estate. The following excerpt of the judgment reflects the distribution adopted by the trial Court as follows:‘All the 13 beneficiaries (including the applicant and the protester) entered into a consent on February 10, 2015 and shared Kshs 11,000,000/= equally. The balance from the proceeds of the parcels at Kshs 11,908,595/=. In the circumstances of the case, I ask that 40% of the Kshs 11,908,595/= shall go to the applicant Agnes Nthenya. It works to Kshs.4,763,438/=. The protester Scholastica Ndululu Suva, Mark Maweu Suva, Felix Munyoki Suva, Barnaba Iwia Suva, Clement Moki Suva, Jonathan Kaloki Suva, Methussella Kivila Suva, Isaac Ngolano Suva, Roy Silas Suva, Metes Mwonge Suva, Abednego Andrew Munyoki and Sarah Muyoki Suva shall equally share the balance of Kshs 7,145, 157/=. Each will get Kshs 595,429/75. Lastly the proceeds of the treasury Bills Nos A0009717 and A0009718 shall be equally shared among all the 13 Beneficiaries.’From the above it is apparent that apart from the amount of Kshs 11,908,595/= of which the respondent received 40 percent, the rest of the proceeds were shared out equally. An arithmetical calculation reveals that the respondent actually got only about 25 percent of the total sum whilst the rest was shared out equally amongst the remaining 12 beneficiaries. In the circumstances the appellant’s contention that the distribution was unfair has no substance.”

12. It is therefore clear that the court has discretion in distributing the estate of a deceased intestate and in doing so various factors ought to be considered are inter alia the age of the beneficiaries, the contributions of the beneficiaries towards the acquisition of the property and whether an intestate had, during his lifetime or by will, paid, given or settled any property to or for the benefit of a beneficiary.

13. In this case, the parties are not able to agree on the properties that the deceased left behind. According to the summons for confirmation of grant the deceased left Land Parcel Nos Mavoko Town/Block 3/XXXX, Machakos/Kiandani/XXXX, Machakos/Kiandani/XXXX, Machakos/Kiandani/XXXX, Machakos/Kiandani/XXX, Mavoko Town/Block 3/XXX, Commercial Plot no XXXX Ivoovani, 5 shares in Membership no XXXX Kyanzavi Farmers Co Ltd, Land in Lukenya measuring 20 acres, Land in Lukenya measuring 5 acres, Plot no XXXX Wamaa, Plot no XXXX Wamaa, Plot no XXXX Wamaa and Plot in Utooni. According to him, Machakos/Kiandani/XXXX was bought from Serah Nthikwa Kilonzo and there was a sale agreement to the effect. Three purchase also acquired some of the deceased’s properties while 2 of the beneficiaries passed on.

14. He annexed copy of the documents in support of parcel nos XXXXX, 3/XXX, 3/XXXX, XXX, XXX and XXX. He also annexed copies of the agreement between the deceased and James Kinara Isoe and Willy Jacobs Bubba. There were also copies of the death certificate and burial permit for the deceased beneficiaries.

15. While there as an agreement for sale between the deceased and the James Kinara Isoe in respect of Mavoko Town Block 3/XXXX, apart from the acknowledgement of payment of the sum of Kshs 200,000/- out of the total purchase price of Kshs 2,400,000/- there was no evidence that the balance as paid. As regards plot no XXX at Kinanie, the agreement showed that the full purchase price had been paid.

16. On the other hand, the protestor alleged that the deceased only left behind Land Parcel nos Mavoko Town/Block 3/XXXX, Land Parcel nos Mavoko Town/Block 3/XXXX, Land Parcel Nos Mavoko Town/Block 3/XXX, Commercial Plot in Mavoko Town/Block 3/XXX, Commercial Plot no XXXX Ivovoani. The deceased however sold 5 acres of Land Parcel nos Mavoko Town/Block 3/XXX to Nathan Ndetei Mbithi and Land Parcel nos Mavoko Town/Block 3/XXX to Willy Jacobs during his lifetime. She however denied the purported sale to James Kinara Isoe.

17. According to the protestor, 40 acres in Mavoko Town/Block 3/XXXX, 20 acres in Mavoko Town/Block 3/XXXX, the Ivoovani Plot XXXX, Machakos/Kiandani/XXXX and Machakos/Kiandani/XXXX should be divided equally between the two households as well as the 5 shares in Kyanzavi. However, Plot no XXXX Wamaa, Plot no XXXX Wamaa, Plot no XXXX Wamaa which do not belong to the deceased should not be included in the grant.

18. She claimed that she was the one who bought Machakos/Kiandani/XXX from Serah Nthikwa while the deceased directed that Machakos/Kiandani/XXX be their matrimonial home and should be retained by herself.

19. It is clear from the evidence that Land Parcel no Mavoko Town/Block 3/XXX was sold by the deceased to Willy Jacobs. Accordingly, that parcel is to be registered in the names of the said purchaser. As regards the alleged sale to Nathan Ndeti Mbithi, there is no evidence to that effect while there is similarly no evidence that James Kinara Isoe paid the balance of the purchase price. Accordingly, he can only claim the sum he actually paid as a debt from the deceased’s estate.

20. I also find that there is no evidence that the deceased distributed any of his properties during his lifetime as well as no evidence that the protestor was the one who purchased the plot she is claiming. I also find no evidence regarding the deceased’s proprietorship of Plot no XXXX Wamaa, Plot no XXXX Wamaa, Plot no XXXX Wamaa. Accordingly, those properties are hereby removed from the list of assets of the deceased.

21. Accordingly, save for the exclusion of the said three properties as well as the property that as sold to Willy Jacobs, I find that the rest of the properties itemised by the 2nd petitioners are the correct properties of the deceased.

22. In line with section 40 of the Law of Succession Act I direct that the deceased’s said assets are in the first instance, to be divided among the houses according to the number of children in each house. However, the protestor is to be added as an additional unit to the number of children in her house.

23. In carrying out the said distribution, the matrimonial home shall as far as and to the extent of her entitlement be retained by the protestor herein. Account should also be taken of the portions of the estate in occupation or utilisation by the respective beneficiaries and a valuation of estate be undertaken with a view to determining its true value for the purposes of the distribution as aforesaid. Once that is undertaken, any beneficiary inoccupation having an upper hand in terms of the valuation shall compensate the beneficiary who is disadvantaged therefor either through payment of the value to his advantage/disadvantage or by transfer of land commensurate with the said value. The other properties which are not in occupation including the shares shall be distributed as aforesaid.

24. It is so ordered.

25. There will be no order as to costs.

G V ODUNGAJUDGERULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: