[2023] KEHC 24825 (KLR)

Njobu v Muriuki & another (Civil Appeal E118 of 2022) [2023] KEHC 24825 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24825 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal E118 of 2022

LM Njuguna, J

November 3, 2023

Between

Julia Wanjira Njobu

Appellant

and

Joseph Mwangi Muriuki

1st Respondent

Wilson Kago Muriuki

2nd Respondent

(Appeal from the Ruling of Hon. S.M. Nyaga SRM delivered in Senior Principal Magistrate’s Court Baricho Succession Cause No. 106 of 2019 on 17th November 2022)

Judgment

1. The appellant has filed memorandum of appeal dated December 13, 2022, being dissatisfied with the above-cited decision of the trial court, now seeking orders that the ruling be set aside, this court grant order in favour of the appellant upholding the protest filed in the lower court and costs of the appeal.

2. The appeal is premised on the grounds that the learned magistrate erred in law and fact by:a.Dismissing the appellant’s protest against the confirmation of grant dated April 1, 2022 against the weight of the evidence adduced by the appellant in support therein;b.Holding that the appellant was not a beneficiary to the estate of the deceased despite being married to the deceased’s brother and having lived in the estate since 1965;c.Holding that the appellant had no survivorship capacity to the estate of the deceased despite having lived on the suit property even after demise of her husband;d.Holding that the appellant was not a dependant of the estate of the deceased despite evidence adduced by the appellant in support of thereof;e.Holding that the appellant had no capacity to represent her husband Job Gichira Githiri notwithstanding that there was sufficient evidence adduced by the appellant;f.Not being guided by the authorities submitted by the appellant, hence failed to deliver a legally sound ruling; andg.Delivering a ruling based on extraneous reasons against the weight of evidence tendered by the appellant.

3. The court issued a grant of letters of administration on November 20, 2019 to the respondents herein. They proceeded to file summons for confirmation of the grant together with the relevant supporting affidavit, both dated March 21, 2022. The appellant promptly filed an affidavit of protest dated April 1, 2022 contesting confirmation of the grant in the manner suggested in the summons for confirmation of grant filed by the respondents. In her protest, the appellant stated that she is the widow of the deceased’s brother namely Job Gichira Githiri and that she has been residing on land parcel number Mwerua/Kanyokora/3 since 1965.

4. It was argued that the deceased had 2 brothers who had predeceased him. She deposed that her late husband was buried on the land and that the whole family knew that the appellant and her husband were entitled to one third of the land, which she claims under section 29 of the Law of Succession Act. That the land is the only home her children know of, but the respondents wanted to disinherit them all, yet the Chief’s introductory letter included them as beneficiaries. She suggested a mode of distribution which divided the property into three portions for the children of the deceased and the two widows of the deceased’s brothers.

5. The court took viva voce evidence and the appellant testified as PW1, stating that the deceased had two brothers who are now deceased and that she is the widow to one of them. That she has lived on the land since 1965 and has had seven children out of which three had died and were buried on the same land alongside her deceased husband. On cross-examination she stated that she is a sister-in-law to the deceased and that they all live on the suit land which was not demarcated.

6. She averred that the deceased did not leave a will to show how he wished the land to be shared among the 3 brothers, but it is her wish that the land be divided equally among the houses of the 3 brothers. That the land is solely in the names of the deceased since he acquired the land in 1960. She stated that she was involved in criminal proceedings at Baricho Law Courts between the years 2006-2007 regarding the estate. That her family and that of the deceased were the ones in occupation of the land while the other brother’s family lived in Nanyuki. That the deceased was supposed to share the land with his 2 younger brothers.

7. PW2 is a son of PW1 who stated that land parcel number Mwerua/Kanyokora/3 was registered in the name of the deceased as the first-born son to hold in trust for the 2 younger brothers and that the deceased’s father instructed each brother to use one third of the land. That they have been utilizing their portion of land as a homestead and farm where they have planted cash crops. That he is surprised that they have been excluded from the distribution considering that they have been living there all their lives and is the only home they know. On cross-examination, he stated that the land was given to the deceased in 1960 by the Muchera clan and that he was meant to hold it in trust for the 2 brothers. That a part of the land was compulsorily acquired by KENHA and the deceased was compensated. That it was the norm for the clan to allocate land to the first-born sons of each family to hold in trust for the others. That PW2’s father died in 2005 while still claiming his portion of the land. He stated that the title deed of the land did not show that the land was being held in trust.

8. The 1st respondent stated that the deceased was his father and that he acquired the land in 1960 following which the title was registered in his name. That the land should be divided equally amongst the 5 children of the deceased because the appellant was given a small portion of the land where she built her house. That the appellant and her children have been living on the land.

9. The trial court noted that issues regarding ownership of the suit land were raised in Nyeri High Court no. 186 of 1988 and the same was dismissed. The trial court applied the provisions of section 38 of the Law of Succession Act and stated that the appellants protest was not founded under Part III of the Act in alleging that she was a dependant of the deceased. The learned Magistrate stated that the agreement between the deceased and his brother, who is the late husband of the appellant, to allow him to use a portion of the land was merely a gentleman’s agreement and therefore, has no basis in law. The court held that the protest lacked merit and was dismissed. Consequently, a certificate of confirmation of grant was issued on 15th December 2022 distributing the suit land amongst the five children of the deceased.

10. In this appeal, the court directed the parties to file written submissions and they both complied.

11. It was the appellant’s argument that her late husband had sued the deceased in Nyeri High Court no. 186 of 1988 which abated following death of both parties. That before death of the parties, the Land District Tribunal had forwarded its findings to Nyeri High Court for adoption. That the respondents conceded that the deceased had given ⅛ of an acre to the appellant and that the appellant should have been included in the distribution of the estate to this end. That the appellant’s husband and 3 of her children were buried on the same land and therefore, she is not a stranger to the estate. She relied on the case of Aurenzia Gikiri Njeru v Kimani Kabenge & 2 others (2014) eKLR and urged the court to exercise its unlimited jurisdiction on the matter, as conferred by article 165 of the Constitution.

12. The respondents, in their written submissions, argued that the appellant was not a beneficiary of the estate within the meaning of Section 38 of the Law of Succession Act. That the Appellant also did not apply to the court to benefit as a dependent under section 29 of the Law of Succession Act neither did she move the court to be declared a dependent. That the appellant is claiming land which the deceased graciously allowed her husband to live on out of love and nothing else and that she is not a beneficiary. That there was no determination of trust between the deceased and the husband of the appellant and the High Court does not have jurisdiction to determine the issue. They relied on the case of In re Estate of Mambo Ngala also known as Mumbo Ngala Chitu (deceased) (2020) eKLR.

13. From the argument made herein, in my view, the issue for determination is whether the appellant can claim a portion of the estate of the deceased as a sister-in-law.

14. The summons for confirmation of grant suggested a mode of distribution that was in line with section 38 of the Law of Succession Act which provides that where the deceased was survived by children and no spouse, the estate should be equally divided amongst the children. The appellant contested this position stating that the deceased had given a piece of land to her and her now deceased husband. At the hearing of the protest, the 1st respondent confirmed that the deceased indeed apportioned ⅛ of an acre to the husband of the appellant out of love and affection, but gave nothing to the appellant directly, hence she cannot claim. In my view, the action of the deceased giving the piece of his land to his brother Job Gichira Githiri would have been considered in a claim for dependency by the said brother. For instance, Job Gichira Githiri would have made his case in this estate that he was being sustained by the deceased who gave him a piece of land on which to settle his family and it is the only home he knows.

15. I do agree with the respondents that this was not the approach preferred by the appellant and she claims a portion of the estate in her capacity as the sister-in-law of the deceased. Section 29 of the Law of Succession Act defines dependents as follows:For the purposes of this Part, "dependant" means-(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b)such of the deceased's parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c)where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

16. Section 27 of the Act provides that the court will grant an order declaring an applicant as a dependant of the deceased once it is satisfied that the applicant has proved the factors stated under section 28 of the Act. Basically, these provisions mean that dependency on the deceased is a matter of fact and must be proved or demonstrated through evidence. In this case, the appellant stated that she has resided on the land since 1965 and it is on the same land where her late husband and 3 children were buried. That she regards the land as home and so do her remaining children. PW2 stated that he has known the land to be his home and that he and PW1 have invested significantly in cash crops. The appellant does not deny that the land is indeed registered in the name of the deceased but she states that the land was to be held in trust by the deceased for the other brothers.

17. It would appear that the appellant wants to be regarded as a dependent of the deceased. There is, however, a flaw in this line of thought. First of all, the appellant is not in the category of persons who may claim dependency by virtue of section 29(2) of the Law of Succession Act. Her husband would have had the right to claim but not the appellant, at least not in her own capacity as a sister-in-law. Secondly, it is trite that if a party wishes to claim on behalf of a deceased person, then they can do so as personal representative of the estate of the deceased. By this, I mean that since the late husband of the appellant had a legal right to claim from the estate of the deceased, the appellant ought to have taken out letters of administration in the estate of her husband and then lay claim on his behalf as a dependent. Thirdly, in any event, the children of Job Gichira Githiri would also have been better claimants as dependents of the estate of the deceased. They would have made their case as dependents and may be the same would have been considered.

18. I say this considering the provisions of the Second Schedule of the Probate and Administration Rules where consanguinity is explained. According to the provided table of consanguinity, the children of the appellant are in the 3rd degree of consanguinity while her husband is in the 2nd degree of consanguinity. This means that either the husband or the children of the appellants were better placed to pursue a claim on the estate of the deceased and the same would have been entertained by the court where evidence would have been subjected to the provisions of section 28 of the Law of Succession Act and dependency strictly proved. In the case of Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi &others, Chuka Succ. Cause No. 12 of 2016 :-“From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."

19. In the present case, and unfortunately for the appellant, I find no basis in law for her claim to be included in the distribution of the estate of the deceased.

20. Therefore, it is my considered view that the appeal lacks merit and the same is hereby dismissed. Each party shall bear their own costs given the nature of the relationship between the parties.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT KERUGOYA THIS 3RD DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE