[1999] KEHC 12 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Prob & Admin Cause 2039 OF 1998

IN THE MATTER OF THE ESTATE OF JOSEPH GITHARA NGUNDA - DECEASED

CECILIA MUTHONI KARANJA )

CECILIA MUTHONI GITHARA )

LUCY NJERI KAMAU)......................................... APPLICANT

VERSUS

PETER KAMAU GITHARA)

DAVID KIMANI GITHARA )

SCHOLASTICA WANJIKU GITHARA)...................... RESPONDENT

RULING

PETER KAMAU GITHARA and DAVID KIMANI GITHARA (the applicants)have filed this application by way of a Chamber Summons dated 4thJune 1999 and filed under Section 71. (3) of the Law of SuccessionAct Chapter 160 Laws of Kenya, for the grant of letters ofadministration issued to them jointly with SCHOLASTICA WANJIKUGTTHARA (the objector) on 14th day of August 1998 to be confirmed.It is supported by the joint affidavit of the applicants, drawn andsworn bY them on the same 4th June, 1999.

In that affidavit the applicants have deponed that JOSEPHGITHARA NGUNDA (the deceased) died on the 6th February, 1998 and agrant of letters of administration was made in this cause by thiscourt on the 14th August, 1998 that the deceased was survived bythe persons named in the petition who are eligible to be his heirs;that the deceased was not survived by any other dependants falling within the meaning of section 29 of the Law of Succession Act andno application under part III of the said Act is pending; no Estateduty is payable in respect of the deceased who died after 1st dayof January, 1982; that there being no sustainable objection by anyparty it would be mete and just in all the circumstances of thecase that the grant be confirmed now that six months are over.

The assets of the deceased are listed in paragraph 6 of thatjoint affidavit and the mode of distribution is stated at paragraph7 thereof. Essentially the estate of the deceased is proposed tobe distributed between SCHOLASTICA WANJIKU GITHARA (the objector)who is to enjoy a life interest in the estate in her capacity asthe deceased's widow, while PETER KAMAU GITHARA and David KimaniGithara share the residual net intestate estate in their capacitiesas the deceased's surviving sons. The affidavit in support of thepetition filed on 9th June, 1998 shows that SCHOLASTICA WANJIKUGITHARA was aged 81 years (she is now 82 years) while Peter KamauGithara was 40 years and David Kamau Githara was 44 years. Theyare now aged 41 and 45 years respectively.

The grounds of opposition to the confirmation of this granthave been filed by the same SCHOLASTICA WANJIKU GITHARA (thedeceased's surviving widow and the mother of Peter Kamau Githaraand David Kamau Githara). Her main objection is that, one of thedeceased's daughters, namely MISS CECILIA MUTHONI GITHARA, has beenleft out in the distribution of the estate of her deceased father.The issue then for my determination is whether Miss CECILIA MUTHONIGITHARA is entitled to a share of her father's estate.

I received submissions on this issue from both Mr. NyangoroAdvocate, representing the applicants, and Mr. Wachira, representing the objector.

According to Mr. Nyangoro, Miss Cecilia Muthoni Githara is notentitled to the property or to a share of her father's estatebecause she is a married daughter of the deceased. She got marriedto RICHARD MWANGI KIRIGWI in 1978 under Kikuyu Customary Law, whichmarriage was solemnised at Kinyona Catholic Church in 1994. Thebest man in that Marriage was PETER Kamau Githara (1st applicant)and both CECILIA MUTHONI GITHARA and RICHARD MWANGI KIRIGWI wereblessed with five children who are still alive. Mr. Nyangoro askedthe court to refer to the Ruling of the Hon Mr. Justice O'Kubasu inthis respect delivered on 9th December, 1998 and to an affidavitfiled on 17. 9.98. I have done so.

In that affidavit filed on 17. 9.98 this is what PETER KAMAUGITHARA had deponed to in paragraph 8 (iii):-

"The second applicant CECILIA MUTHONI GITHARA was born in1961 and was married in 1978 to RICHARD MWANGI KIRIGWIfirst under Kikuyu Customary Law and later the marriagewas solemnised at Catholic Church Kinyona in 1994 inwhich I was a best man. The children of their marriageare:

(a) Seth Kirigwi Mwangi born 1978

(b) Jane Wairimu Mwangi daughter born in 1980

(c) Caroline Waithira Mwangi daughter born in 1983

(d) Wanjiku Mwangi daughter

(e) Joseph Githara Mwangi son born 1989

Her marriage is still subsisting"

In his ruling delivered on 9th October, 1998 Mr. JusticeO’Kubasu said that in this cause the deceased had two wives:Scholastica Wanjiku and Jane Wairimu. The house of Scholastics isrepresented by Scholastic herself, and the house of Jane Wairimu isrepresented by her two sons Peter and David. This is how itshould be. Cecilia Muthoni Karanja, Cecilia Muthoni Githara andLucy Njeri Kamau, who are married daughters of the deceased, haveno business in interfering in this estate of their late father.

That decision of Mr.. Justice O’Kubasu has not been overturnedor overruled by an appellate court. Though it is not binding uponme, in my view, it is good law. It gets support in the holding ofthe court of Appeal decision in JOHN NDUNGU MUBEA -VS- MILKANYAMBURA MUBEA - CIVIL APPEAL NO.76 OF 1990 unreported. It is alsosupported by the findings of EUGENE COTRAN in his book RESTATEMENTOF AFRICAN LAW - THE LAW OF SUCCESSION VOL.2 page 8 where it isrestated as follows:-

"Inheritance under Kikuyu Law is patrilineal. Thepattern of inheritance is based on the equal distributionof a man's property among his sons, subject to theprovision that the eldest son may get a slightly larger share. In a polygamous household the distribution is byreference to the house of each wife. Widows, though notentitled to an absolute share of the estate, have a rightof use during their lifetime, of a portion of land andcertain movables. Daughters are normally excluded butmay also receive a share if they remain unmarried."

Mr. Wachira Advocate even concedes this point of law. But hehas submitted that CECILIA MUTHONI GITHARA has since separatedfrom her husband Richard Mwangi Kirigwi and has returned to herparents' home. This means that the marriage of CECILIA MUTHONIGITHARA and Richard Mwangi is no more. This begs the question:when did the separation occur? If this was done through a court oflaw, where is that court order dissolving that marriage or orderinga separation? Where is the affidavit of CECILIA MUTHONI GITHARA tothat effect or even of Richard Mwangi Kirigwi? And why didn'tSCHOLASTICA WANJIKU GITHARA depone so in her Replying Affidavitfiled on 16th August, 1999, as a reply to this application?

In the absence of any acceptable and credible evidence to thecontrary, this court still holds that CECILIA MUTHONI GITHARA is amarried daughter of the deceased and is not entitled to inherit herfather's estate.

Like Mr. Justice O'Kubasu, I wish to say in this ruling,hopefully for the last time, that the married daughters of thedeceased in this cause, including CECILIA MUTHONI GITHARA, have nobusiness in interfering in matters relating to the estate of their late father. They should concern themselves with the properties oftheir husbands.

Therefore Scholastica's main opposition to the confirmation ofthis grant on the basis that CECILIA MUTHONI GITHARA has beenexcluded from the deceased's estate, does not have a legal support.The applicants have lawfully excluded CECILIA MUTHONI GITHARA fromtheir father's estate.

SCHOLASTICA'S second ground of opposition is that theapplication does not outline how the liabilities of the deceased'sestate shall be dispensed with, especially the Shs.70,000 Hospitalbill which remains unpaid to date.

Mr.. Nyangoro has replied to this by saying that, if there issuch a Hospital bill unpaid, or if Shs.150,000 borrowed from oneGathirimu Githara is still outstanding, the court can order it tobe paid out of the estate. Indeed section 83(d) of the Law ofSuccession Act provides:-

Personal Representatives shall have the followingduties:-a. -b.-c. -

d. To ascertain and pay out of the estate of the deceased, all his debts'It doesn't require a court order to pay debts out of theestate of the deceased. It shall be the statutory duty of PETERand DAVID, after confirmation of this grant today, to ascertain allthe deceased's debts and to pay them out of the estate.

The third ground of opposition is that PETER KAMAU GITHARA hasbeen collecting rent from plots DAGORETTI/RIRUTA/T.333 and 471 asfrom February, 1998 to date, and the amount now stands atKShs.80,000 per month. SCHOLASTICA did state in her affidavit thatshe bought these properties with her own money but due to therespect she had for the deceased husband, she registered them inhis names. Proof of any such transactions has not been madethrough production of relevant documents. PlotsDagoretti/Riruta/T.333 and Dagoretti/Riruta/T.471 are dulyregistered in the deceased's names.

SCHOLASTICA, who states that she is old and sickly, hasclaimed that she has no source of income whatsoever, that PETER andDAVID have not been assisting her in any way although the deceasedleft behind a good estate generating good income. This is ofcourse denied by PETER and DAVID. And if it is true that they havebeen neglecting SCHOLASTICA and not providing for her, it may bebecause the grant was not confirmed and their powers were thuslimited. Things must change from today and this court would liketo see PETER and DAVID make adequate provision to Scholastica out of the estate on a monthly basis for her upkeep and welfare, thisto include provision for food, clothing and medical care. What isadequate provision; I would leave it to the administrators todecide, within their discretion, depending on the financial stateof the estate at any given month.

I will however, give leave to SCHOLASTICA to apply to thiscourt for such provision if non or insufficient of the same isforthcoming. Indeed the principle behind the law that a deceased'sestate should be inherited by his sons, and not the marrieddaughters, is that the sons will always be on the estate, able tomanage it on their own behalf and for the benefit of the deceased'sdependants, particularly a widow. It is to preserve the estatewithin the deceased's family for the good of those who are leftthere. Married daughters are expected to leave that home and clingto their husbands. So in this case PETER KAMAU GITHARA and DAVIDKIMANI GITHARA have a responsibility to provide for Scholasticauntil her death.

There is some dispute over money held in A/C No. 1-11-0Q581 4 atEAST AFRICAN BUILDING SOCIETY. In my view this money was given toPETER KAMAU GITHARA by his late father as shown in the Pass Book.It belongs to him.

For these reasons I grant the prayer in this Chamber Summonsand do hereby confirm the grant issued by this court on 14th August, 1. 998 in the joint names of SCHOLASTICA WANJIKU GITHARA,PETER KAMAU GITHARA and DAVID KIMANI GITHARA as prayed.

The estate of the deceased shall be distributed in the mannerproposed at paragraph 7 of the joint affidavit of PETER KAMAUGITHARA and DAVID KIMANI GITHARA.

Costs of this application shall be paid out of the deceased'sestate. It is so ordered.Dated this 28th September, 1999.

A.G.A. ETYANG' JUDGE

28. 9.99

Delivered this 28th September, 1999 in the presence of Mr.. Nyangoro Advocate for the Applicants mr.. Wachira for the Respondent. Helen Wanja Court clerk interpreting:Kikuyu/English.

A .G .A.ETYANG’

JUDGE28. 9.99

Mr.. Macharia: I pray for stay of the orders for thirty days.Secondly I seek leave to appeal to the court of Appeal for todays Ruling.

A.G. A. ETYANG 'JUDGE

28. 9.99

Mr. Nyangoro: I oppose the application for stay as prayed. I askthe Respondent do make a formal application if he so wishes.

A.G.A. ETYANG’

JUDGE

28. 9.99

Mr.. Machira: The reason for the oral application is for the stay of the order to operate the A/C in E.A. Building Society. If stay is not granted the appeal will be rendered nugatory.

A. G .A . ETYANG’

.JUDGE28. 9.99

RULING

The court had already ruled that the grant issued to theApplicants be confirmed and the distribution of the estate of the deceased be as per paragraph 7 in supporting affidavit.

The court has also ruled that it has sufficiently been shownthat the funds held in the E.A. Building Society A/C do not formpart of the estate as that had been given to the 1st Applicant asshown in the pass book.

The court will not frustrate the disposal of those funds byissuing restraining orders. In the the circumstances of the oralapplication before me, I decline to order a stay as prayed.

I will, however, give the Respondent leave to appeal againstthis decision to the Court of Appeal as prayed.

It is so ordered.

A.G. A . ETYANG'JUDGE

28. 9.99