[2022] KEHC 12098 (KLR)

Ngugi v Ngugi (Succession Cause 357 of 2017) [2022] KEHC 12098 (KLR) (Civ) (9 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12098 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Succession Cause 357 of 2017

AO Muchelule, J

May 9, 2022

Between

Jane Wangui Ngugi

Administratrix

and

Francis Mbaki Ngugi

Administrator

Judgment

1. The deceased Paul Ngugi Mbugua died on 26th October 2016 at the Kenyatta Hospital. On the basis that he left a written Will dated 3rd July 2014, to his widow Jane Wangui Ngugi (the petitioner) on 30th August 2017 petitioned this court for the grant of probate with Will annexed.

2. In the Will, the deceased indicated that petitioner was his second wife with whom he had the following children:-a.James Mwangi Ngugi II;b.Veronicah Wangari Ngugi;c.Susan Njeri Ngugi;d.Mary Mukuhi Ngugi;e.Paul Mbugua Ngugi II;f.Francis Mbaki Ngugi II; andg.Martha Njoki Ngugi.He had his first wife Hannah Nduta Ngugi who had predeceased him. She had left him with the following children:-a.Margaret Wanjiku Ngugi;b.Clement Mugweru Ngugi;c.Damaris Nyambura Ngugi;d.Leah Warura Ngugi;e.Francis Mbaki Ngugi I (administrator);f.Paul Mbugua Ngugi I;g.Salome Mukuhi Ngugi; andh.Anne Wambui Ngugi.In this first house, Leah Warura Ngugi died in 2015 and left four sons. Paul Mbugua Ngugi II died in 1991, Salome Mukuhi Ngugi died in 2003 and Anne Wambui Ngugi died in 2003. Clement Mugweru Ngugi has a mental condition.

3. The petition by the petitioner led to a grant to her which was confirmed on 15th May 2019. However, on 29th January 2020 the same was by consent revoked. A fresh grant of letters of administration intestate was issued to the petitioner and Francis Mbaki Ngugi I (administrator). What is before the court is the distribution of the estate of the deceased to the beneficiaries. This follows the application dated 16th August 2021 by the petitioner to which Francis Mbaki Ngugi I responded by his replying affidavit sworn on 16th September 2021. The fact that the parties, who were represented, decided to abandon a grant of probate and go for a joint grant of letters of administration intestate shows clearly that reference will no longer be made to the Will. What is apparent is that the deceased had begun sharing his property to the family members by the time he died.

4. The deceased’s estate comprised:-a.Dagoretti/Waithaka/59A which he had subdivided into various portions;b.LTK/Emperoni/104 measuring 6 acresc.shares in Dagoretti slaughterhouse;d.shares in Lusigetti Hides and Skins; ande.shares in Kenya Ihenya Land buying Company.

5. Essentially, the deceased left two houses and therefore the sharing shall be done under section 40 of the Law of Succession Act (Cap. 160) that provides 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. ”Under section 42 of the Act, any benefits given to a beneficiary by the deceased before his death will be taken into consideration when distributing the net estate to the beneficiaries.

6. The deceased had subdivided Dagoretti/Waithaka/59A. According to the petitioner, he subdivided it into 8 portions which he shared as follows:-a.Dagoretti/Waithaka/2288 which he gave to Clement Mugweru Ngugi; Dagoretti/Waithaka/2257 to both Margaret Wanjiku Ngugi and Leah Warura Ngugi; Dagoretti/Waithaka/2256 to Damaris Nyambura Ngugi; and Dagoretti/Waithaka/2260 which he gave to Francis Mbaki Ngugi I, all these being from the first house; andb.Dagoretti/Waithaka/2266 to Francis Mbaki Ngugi II; Dagoretti/Waithaka/2264 to James Mwangi Ngugi II; and Dagoretti/Waithaka/2265 to Paul Mbugua Ngugi II, all from the house of the petitioner.She stated that she was allocated Dagoretti/Waithaka/2255 where she has her matrimonial home and where the deceased was buried.

7. The petitioner went on to state that the deceased gave out L.T.R./Emperoni/104 as follows:-a.herself 0. 5 acres;b.Ngugi Mbugua (deceased) 0. 5 acres;c.James Mwangi Ngugi 1 acre;d.Veronicah Wangari Ngugi 0. 5 acres;e.Mary Mukuhi Ngugi 0. 5 acres;f.Paul Mbugua Ngugi II 1 acre;g.Francis Mbaki Ngugi II 1 acres andh.Martha Njoki Ngugi 1 acre.It is clear that the children from the second house were getting 1 acre each from the parcel.

8. According to Francis Mbaki Ngugi I the deceased subdivided Dagoretti/Waithaka/59A into 12 portions intending to give each house 6 portions but he sold 4 of the portions. He gave Dagoretti/Waithaka/2256 to Damaris Nyambura Ngugi; Dagoretti/Waithaka/2258 to Clement Mugweru Ngugi; Dagoretti/Waithaka/2260 to himself; Dagoretti/Waithaka/2264 to James Mwangi Ngugi; Dagoretti/Waithaka/2265 to Paul Mbugua Ngugi II; and Dagoretti/Waithaka/2266 to Francis Mbaki Ngugi II. Regarding Dagoretti/Waithaka/2255, he conceded that this is where homes of both his mother and the petitioner were built. This is where the deceased and the members of the family who have died have been buried. The petitioner has since constructed rental houses and collects rent form them. He swore that the deceased had allocated the parcel to Paul Mbugua Ngugi I.

9. As for L.T.K./Emperoni/104 Francis Mbaki Ngugi I asked that 3 acres goes to the first house and three acres goes to the second house. He complained that the deceased had sold various parcels of land towards his last days and had given the proceeds to the petitioner. The parcels included Ruiru East/Juja Block 2/4093. There was no evidence that the petitioner received money as alleged. In any case, the deceased was at liberty to sell his property and apply it whichever way he wanted.

10. I consider that Dagoretti/Waithaka/2255 was the deceased’s home where he settled the petitioner who has since extensively developed it. The family has buried its dead here. It is only reasonable that his portion be given to the petitioner.

11. The first house of the deceased had 8 members. Of them, Leah Warura Ngugi, Paul Mbugua Ngugi, Salome Mukuhi Ngugi and Anne Wambui Ngugi died. Only Leah Warura Ngugi left a family. The house was therefore left with 5 units comprising Margaret Wanjiru Ngugi, the house of Leah Warura Ngugi, Clement Mugweru Ngugi, Damaris Nyambura Ngugi and Francis Mbaki Ngugi. The house of the petitioner has 8 units (the petitioner and her seven children).

12. It appears to be common ground that the deceased, while alive, gave Dagoretti/Waithaka/2260 to Francis Mbaki Ngugi I, Dagoretti/ Waithaka/2256 to Damaris Nyambura Ngugi, Dagoretti/Waithaka/ 2257 to Margaret Wanjiku Ngugi and Leah Warura Ngugi, Dagoretti/Waithaka/2288 to Clement Mugweru Ngugi, Dagoretti/ Waithaka/2264 to James Mwangi Ngugi II, Dagoretti/Waithaka/2265 to Paul Mbugua Ngugi II and Dagoretti/Waithaka/2264 to Francis Mbaki Mbugua II. Now that Paul Mbugua Ngugi I died, his share of Dagoretti/Waithaka/2265 will go to the house of Leah Warura Ngugi. That will leave Margaret Wanjiku Ngugi with Dagoretti/Waithaka/2257.

13. This means that Veronica Wangari Ngugi, Susan Njeri Ngugi, Mary Mukuhi Ngugi and Martha Njoki Ngugi (all from the house of the petitioner) were not provided for. Each has a claim to the estate, equal to that of any other beneficiary of the deceased. It was stated in the evidence that the value of the property in Dagoretti/Waithaka is higher than that of LTK/Emperoni. I ask that each of these four gets one (1) acre in LTK/Emperoni/104. That will leave two (2) acres which shall be shared equally mong Veronica Wangari Ngugi, Susan Njeri Ngugi, Mary Mukuhi Ngugi, Martha Njoki Ngugi, James Mwangi Ngugi, Paul Mbugua Ngugi II, Francis Mbaki Ngugi II, Margaret Wanjiku Ngugi, Clement Mugweru Ngugi, Damaris Nyambura Ngugi, Francis Mbaki Ngugi I and the house of Leah Warura Ngugi.

14. That leaves shares in Dagoretti slaughterhouse, shares in Dagoretti Hides and Skins and shares in Kenya Ihenya Land Buying Company. I ask that each of the beneficiaries in paragraph 13 and the petitioner equally share these shares.

15. I ask that the joint grant issued to the petitioner and Francis Mbaki Ngugi I be confirmed in those terms.

DATED AND DELIVERED ELECTRONICALLY NAIROBI THIS 9TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE