[2010] KEHC 3898 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI

Succession Cause 189 of 1999

IN THE MATTER OF THE ESTATE OF GACHII WAMBUGU - DCD

AND

PATRICK MATHENGE GACHII & 3 OTHERS ................... PETITIONER

VERSUS

KARUMI WAMBUGU & ANOTHER …………………………….. PROTESTERS

RULING

Gacii Wambuguhereinafter referred to as “the deceased” died on 4th September 1981. On 13th August 1990 Patrick Mathenge Gachii, Humphrey Mwangi Gachii,Simon Wamahiu Gachii, Salome Wanjiru Gachii hereinafter referred to as “the Petitioners” filed a petition for a grant of letters of administration intestate in the Senior Resident Magistrate’s court at Nyeri with regard to the deceased’s estate. Karumi Wambugu and Johnson Gachie hereinafter referred to as “the Protesters” objected to the grant being issued to the petitioners. However when the objection came up for hearing, the first petitioner, Patrick Mathenge Gachie and the 2nd objector, Johnson Gachie were appointed joint administrators. Subsequent thereto and on 28th March, 2002 the petitioner aforesaid applied for the confirmation of the grant. In the said application he proposed that land parcel number Aguthi/Gatitu/1247 be shared equally between himself and Salome Wanjiru Gachii, Patrick Mathenge Gachii, Simon Wamahiu Gachii and Humphrey Mwangi. With regard to land parcel Aguthi/Gatitu/530, he proposed that the same be shared equally between Salome Wanjiru Gachii, Patrick Mathenge Gachii, Simon Wamahiu Gachii and Humphrey Mwangi Gachii.

The proposal did not go down well with the protesters. Accordingly they filed affidavits of protest. The 1st protester claimed that the identification and shares of the estate of the deceased had not been agreed upon nor had the beneficiaries agreed on the mode of distribution. As for the 2nd protester, Karumi Wambugu he claimed in his protest that he was a brother to the deceased and the estate belonged to their father. That he had been left out in the distribution scheme. He proposed that Aguthi/Gatitu/1247 be subdivided between the 1st protester and himself.

On 24th May, 2007, the cause came up for direction. It was agreed that the protest be heard by way of viva voce evidence. Directions were subsequently issued in those terms. The hearing of the protest subsequently commenced before me on 17th September, 2009. The 1st protester testified that he was the son of Kariuki Wambugu, a brother to the deceased. The 2nd protester too was a brother of the deceased. That Aguthi/Gatitu/1247 hereinafter referred to as “the suit premises” was registered in the deceased’s name. Originally it measured 10 acres. However the deceased, the 1st protester’s father and 2nd protester agreed to sell 1½ acres. During land consolidation the suit premises were registered in the name of the deceased in trust for himself and his two brothers. He stays on the suit premises with his brothers and the 2nd protester. His late father had during his lifetime claimed from the deceased his share of the suit premises vide a demand letter dated 7th February 1979. He proposed that the suit premises be shared equally between him and the 2nd protester and that the petitioners should not inherit a portion thereof since they already have their share in Aguthi/Gatitu/530.

Cross examined by Mr. Mugo, learned counsel for the petitioner he stated that his father died in 1981. That he had not obtained a grant of letters of administration with regard to his father’s estate. That he was pursuing the claim on behalf of his deceased father. The deceased was registered as the proprietor of the suit premises in 1978 whilst his father was still alive. He could not tell why his father did not get his share then. He conceded that the green card did not show that the suit premises were registered in the name of the deceased to hold in trust for his father. He also conceded that what he was saying in court was what he had heard from other people. Though the deceased passed on sometimes in 1980 the protester’s father never sued him for his share of the suit premises.

The 2nd protester testified through his son, Francis Mwaniki Karumi. He stated that his father was entitled to half share of the suit premises. His father and the 1st protester stay on the suit premises.

Cross examined he stated that his father came to the suit premises in 1978. He was invited to the suit premises together with 2nd protester by the deceased. That the deceased’s father, Wambugu Mathangani gave the suit premises to the deceased to hold in trust for himself and the protesters. He did not know why his father was not registered as a proprietor of the suit premises. His father also did not sue the deceased for his share of the suit premises. That the deceased kept promising that he would subdivide the suit premises between himself and the protestor.

With that the protesters closed their case.

For the petitioners, the 1st petitioner testified that the co-petitioners were his brothers and step mother respectively. The deceased was his father. He was given 20 acres by his father, the late paramount chief, Wambugu Mathangani. He denied that the deceased was given the suit premises to hold in trust for the protesters. He conceded that the 2nd protester stays on the suit premises. He came into the suit premises in 1986. Though he demanded a portion of the suit premises from the deceased, the deceased told him that he did not own any land on his behalf. That the deceased had sold an acre of the suit premises and nobody complained. That his stepmother Salome, had passed on. She had no children. He wished that her share of the estate should go to the surviving petitioner equally. The remainder of the estate should then be shared as follows; 1 acre to the 1st protester and the rest to the petitioners.

Cross examined by Mr. Macharia learned counsel for the protester, he responded that he did not know that Gachie Karumi, Kariuki and Wamahiu were sons of an adopted daughter of chief Wambugu called Priscilla Muthoni. He did not know how land demarcation was carried out. The 2nd protester came to the suit premises in 1986. He was not aware of a letter written to the deceased by Joseph Kariuki Wambugu demanding land. The 1st protester stays on the suit premises on a portion that he was given by the deceased. He denied that the deceased was given land to hold in trust for his brothers.

The 2nd petitioner Humphrey Mwangi Gachie also testified. However he merely adopted the evidence of the 1st petitioner. Cross examined, he stated that the 1st protester was his cousin. That Gachie Karumi, Kariuki Kabugu and Wamahiu were sons of Priscilla Muthoni, an adopted daughter and not wife of the late chief Wambugu Mathangani. The chief gave 20 acres to the deceased. He was not to hold the same in trust for his brother.

The last witness for the petitioner was Charles Maina Wamahiu. Both PW 1 and DW 1 were his cousins according to his evidence. They shared the same paternal grandfather chief Wambugu Mathangani. He testified that every 1st born in the family of chief Wambugu Mathangani was given 10 acres. The deceased Wamahiu Wambugu, Kariuki Karuma and Kabungo though not biological children of Wambugu Mathangani were nonetheless given land as though they were children of Wambugu Mathangani. However he could not tell why the three were not given land. They were all adults though. He could not also recall the 3 going to ask him for land. They should have claimed land from chief Wambugu Mathangani.

That marked the close of the petitioner’s case.

Thereafter parties agreed to put in written submissions. Those submissions were subsequently filed and exchanged. I have carefully read and considered them.

The protester’s claim to the estate of the deceased is anchored on trust. That the deceased was registered as the proprietor of the suit premises in trust for his brothers, the 2nd protester and the 1st protester’s father. When the 1st protester testified, he was categorical that he was claiming a portion of the suit premises on behalf of his deceased’s father’s estate. In cross examination he stated that he had not obtained a grant of letters of administration limited or otherwise with regard to his late father’s estate. That being the case and as correctly submitted by Mr. Mugo the 1st protest by the 1st protestor must and is bound to fail as he has no legal capacity to claim his father’s entitlement.

The 2nd protester, Karumi Wambugu did not testify owing to his old age. However his son testified on his behalf. His evidence was to the effect that his father has been living on the suit premises with the 1st protester. However asked in cross examination why himself, his mother and family members have never resided in the suit premises, he had no answer. It is common ground that the deceased had 4 brothers, Kariuki (deceased), Wamahiu (deceased), Karumi and Kabungo. It is also common ground that the deceased was a first born and was given the suit premises by the late chief Wambugu Mathangani. It was also not in dispute that Wamahiu Wambugu, DW 3’s father was also given land. When all this was happening the 1st protester’s father and 2nd protester were all adults. Neither of the protesters could tell why their respective fathers were not given land by chief Wambugu in the same vain as the deceased. Further it is instructive that none of the two seriously claimed the suit premises from the deceased in his life time. Of course, a demand letter addressed to the deceased by the 2nd protester was tendered in evidence. In that letter the 2nd protester raises the issue of trust. He claims that the deceased had the suit premises registered in his name in trust for him to the extent of 5 acres. However, the said letter referred to Wambugu Mathangani as Joseph Kariuki’s father, where as the protesters in their evidence suggested that the deceased and brothers were sons to an adopted daughter of chief Wambugu Mathangani, Priscilla Muthoni. The demand letter though dated 7th February, 1979, no subsequent action was taken by the protesters and or their parents to vindicate their claims to the suit premises. In other words, no action was taken against the deceased between 7th February, 1979 when the demand letter was written and 4th September, 1981 when the deceased passed on by any of the brothers to vindicate their claim to portions of the suit premises. Finally there is evidence that a portion of the suit premises was sold by the deceased in his life time yet none of the protesters raised a finger. If indeed it was true that the deceased held the suit premises in trust for the 1st protesters father and the 2nd protester, they would at least have objected to the transaction. That they did not only goes to show that indeed the suit premises solely belonged to the deceased.

The burden of proving trust rests on the protesters. In my view they have failed miserably to prove such trust. Their entire evidence was hearsay which a court of law cannot act upon. The mere fact that the protesters are in occupation of the suit premises is no proof of trust. In any event it is apparent that the 2nd protester only came to the suit premises in 1986. It is also instructive that the deceased got registered as the proprietor of the suit premises in 1978 when the 1st protester’s father and 2nd protestor were all adults. One wonders then, why the two could not at the time claim their portion of the suit premises if indeed they were clear in their minds that their deceased brother held the suit premises in trust for himself and themselves.

The trust having not been proved, there is no basis for the protests. Accordingly they are dismissed. The grant will be confirmed in terms suggested by the petitioners in their application for confirmation of grant dated 19th March, 2002 and filed in court on 28th March, 2002. This being a family dispute, I make no order as to costs.

Dated and delivered at Nyeri this 25th day of January 2010.

M.S.A. MAKHANDIA

JUDGE