[2017] KEHC 3100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

SUCCESSION CAUSE NO.33 OF 1995

IN THE MATTER OF THE ESTATE OF THE LATE GEORGE KIVINDU SANGA-DECEASED

SERAH MBULWA KIVINDU..............................................OBJECTOR/APPLICANT

VERSUS

THEOPHYLUS MUTUA KIVINDU.............................PETITIONER/RESPONDENT

RULING OF THE COURT

1. The matter arises from the Petition filed on 24th February 1995 for grant of Letters of administration intestate. The said application was gazetted on 28thFebruary1995 and the letters of administration given to Elizabeth Mukonyo Kivindu (now deceased) on 5th May, 1995.

The Objector/Applicant herein filed an application for revocation and/or annulment of grant of probate filed on 21st June, 2012 seeking for orders that:-

i.The grant of letters of administration issued to ELIZABETH MUKONYO KIVINDU ON8th May 1995 be revoked.

ii.A fresh grant of letters of administration be issued to ELIZABETH MUKONYO KIVINDU and SERAH MBULWA KIVINDU.

iii.The cost of this application be borne by the petitioner/respondent in any event.

2. The principal grounds of application were as follows:

i.That the grant was obtained by illegality as the objector has never been involved and or included as an administrator.

ii.That the Applicant is a legal beneficiary of the estate of the deceased thus fit to become an administrator thereof.

3. The Applicant additionally filed a supporting affidavit sworn on 23rd February 2012 and deponed that:-

i.It came to her knowledge that the Petitioner/Respondent had obtained a grant of letters of administration of the estate of her deceased husband and she was never asked to participate in the same.(She attached a letter from the Chief Wote Location that shows her as the 2nd wife to the deceased and a beneficiary of the estate)

ii.That she believes that as a co-wife of the deceased she was to be involved and /or included in the application for grant of letters of administration.

iii.That before it came to her knowledge that the petitioner had moved the court and obtained Grant of letters of Administration, she had made an application to the Senior Resident Magistrate at Makueni for a Grant of Letters of Administration in which application she had included the petitioner as she was her co-wife. (She attached a copy of her Application for Grant of Letters of Administration and the Respondent’s application through which she came to learn of this matter.)

4. In reply the respondent swore a replying affidavit dated 24th September 2012 where she averred that:-

i.The Applicant was not a legal beneficiary either as alleged or at all and was not her co-wife and therefore she did not have to involve her in her petition for grant of letters of administration.

ii.The deceased had chased away the applicant in the 1960’s with the help of the Ethanga clan and she has never returned to the deceased land to date.

iii.The applicant cannot therefore be said to be her co-wife as they have never recognized her since 1960’s.That they have no cordial relationship with the applicant and she cannot be either administrator and/or co-administrator with her as she has adverse interests to the estate.

iv.The Chief’s letter attached to the applicants affidavit and marked “SMK 1’’ is comprised of falsehoods as the members of the 2nd house enlisted therein is incorrect and fraudulent. The children of the applicant enlisted therein are not of the deceased.

v.It is not proper to revoke the grant issued on basis of the foregoing since the applicant does not qualify to become an administrator and neither is she a beneficiary to the estate of the deceased.

5. The Respondent (now deceased Elizabeth Mukonyo Kivindu) further filed an application under certificate of urgency dated 10th December, 2012 and sought the following orders:-

i.That the application be certified as urgent and be heard ex-parte in the first instance.

ii.That the applicant be restrained from encroaching, alienating or in any other manner dealing with any part of the Estate of George Kivindu Sanga ( Deceased ) pending hearing and determination of the applicant’s summons for revocation of grant filed on 21st June2012.

iii.That conservatory orders be granted on all that property comprising of the estate declared to be the estate of George Kivindu Sanga (deceased) pending hearing and determination of the applicant’s summons for revocation of grant filed on 21st June 2012.

iv.That the costs of this application be borne by the applicant

6. A ruling was delivered by Justice B. Thuranira Jaden on 5th February 2015 and prayer no (iii) above was granted pending the hearing of the summons for revocation of the grant.

7. In support of the application dated 23rd February 2012 the applicant put in a supplementary affidavit where she deponed that; having been legally married to the to the late George Kivindu Sanga in the year 1960 under Kamba Customary Law she lawfully joined the petitioner and therefore ought’s to be considered as a beneficiary in the deceased’s estate on the following grounds:-

(i)That in the year 20/7/1976 the late deceased wrote a letter to the National Clan Chairman Ethanga, the letter which she believed was structured will as per his land.(She attached a copy of a translation of the letter in English).

ii)That in the year 1962 she was given a portion in the suit land; where she built a house on the same land and was given a portion to cultivate. The land where she was together with her children.

(ii)That before the deceased passed on, they used to utilize the suit land peacefully each wife in her own share, the only problem arose with the respondent after they buried the deceased she wanted her out of all that parcel of land known as MAKUENI/UNOA/31.

(iii)That the petitioner has always had a motive to evict her from the land and on 31st August1995 she was summoned by the National Clan Chairman Sevano Maveke to appear before the chairman for purposes of confirmation that they should share the suit land.

(iv)That she never appeared but in the presence of all the brothers of the deceased it was ruled that if the Petitioner did not want the applicant on the suit land, then she must get her a land elsewhere.

(v)That the petitioner has never complied with the said ruling made by the Senior Chief Mr. Ngwii assisted by the National Clan Chairman. (see attached a certified copy of the letter dated 31st August, 1995).

(vi)That the petitioner on hearing about the ruling made went to court secretly and filed petition for Letters of Administration without my consent and/or information.

(vii)That if her grant for Letters of Administration is confirmed to her, then she shall have nowhere to live, cultivate and her status in life shall be paralysed together with her children bearing in mind that she was a co-wife to the petitioner.

8. The original Petitioner ELIZABETH MUKONYO KIVINDU passed on 30th January 2016 and Theophylus Mutua Kivindu brought in an application dated 27th April 2016 to have the original interim grant of letters of administration issued in the names of ELIZABETH MUKONYO KIVINDU revoked and issued in his name.

9. The Application was heard and there being no objection the parties agreed to replace the name of the administrator in the interim grant with that of Theophylus Mutua Kivindu.

10. The summons for revocation of grant were heard on 23rd May 2017. The Objector indicated that she objected to the grant of letters of administration because she was left out by the petitioner yet the deceased was their husband. She indicated that she was interested in the land and plot being shared equally amongst them. She was not interested in the cows and goats. She produced in court a copy of her National Identity card that bore the surname of the deceased to prove they were married.

11. In her cross-examination she indicated that she knew that there is need for a an administrator in the estate and she knew Theophylus Kivindu and she did not have a problem with him being an administrator so long as they shared the properties equally.

12. I have considered the said affidavit evidence. The main issue for determination herein is whether the Respondent is a widow of the deceased and therefore whether together with her children they are beneficiaries in the estate of the deceased.

Black Laws dictionary defines a beneficiary as a person for whose benefit a property is held in trust, especially, one designated to benefit from an appointment, disposition, or assignment ( as in a will, insurance policy etc), or assignment or to receive something as a result of a legal arrangement or instrument. A person whom another is in fiduciary relation, whether that relation is one of agency, guardianship or trust.

The main issue for determination is whether there is enough evidence adduced by the Applicant/Objector to warrant her to be an administrator of the estate of the deceased.

The Law of Succession Act defines an administrator as a person to whom a grant of letters of administration has been made under the Act.

13. It was the Respondent’s contention that the Applicant was chased by the deceased in the early 60’s with the help of the Ethanga clan and has since never returned to the deceased land. The respondent filled a further affidavit dated 31st October 2014 and he alleged that the Applicant had lived with the deceased for three (3) days in 1955 and then deserted him, And that she (the applicant) had remarried again 5 times after the break up with the deceased. This was further supported by a letter written by the deceased dated 20/10/1991 produced as exhibit “EMKA’’ in court.

14. The Applicant further filed a supplementary affidavit and went on to allege that on 20th September 1976 the deceased had written a letter and disclosed the manner in which he wished his land to be shared by his wives. A translation of the letter was attached as exhibit ’’ SMK1’’. The applicant further produced a copy of her Identification Card which bore the deceased’s name as her surname.

In the case of Njoki v Mathara and Others Civil Appeal Number 71 of 1989 (UR), Kneller J.A reading the judgment of court held that:-

(i) The onus of proving a customary marriage is on the party who claims it.

ii) The standard of proof is the usual one for civil action balance of probabilities.

iii) Evidence as to the formalities required for customary law marriage must be proved to the above standard.

15. Bearing these considerations in mind, I am far from being persuaded that the Applicant has discharged the burden of proving the existence of a Kamba customary marriage between herself and the deceased. According to the case of Andrew Manunzyu Musyoka (Deceased) 2005 eKLRKamba Customary Marriage is valid when goats of “Ntheo’’ are paid to the girl’s parents and that even if dowry is not paid “Ntheo’’ has to be paid and concludes a marriage. In the same case it was said that if a woman leaves the husband’s home with children and one dies the body has to be taken back to the man’s home for burial. Similarly, if the woman dies while at her parents’ home, the body has to be taken back to the husbands home if “Ntheo’’ has been paid. A lady can only inherit from her father’s estate if she divorces her spouse by returning “mbui sya ulee ‘’ where goats are returned to the husband by the woman.

14. In this instant case looking at the letter written by the deceased dated 20/10/1991 marked “EMKB’’In the letter the deceased had acknowledged that the Applicant herein was his second wife but they stayed for three days and she left. She went and got married to 5 other men with whom she sired children and left them with her mother. One of the children died and was buried at her maternal home. The deceased having attempted to bring her back home to no avail, went to her in-laws and returned a goat to the mother in front of the elders signifying nullification of the marriage.

15. The deceased passed on in April 1993, two years later. There is no confirmation as to whether they had sired any children with the deceased.

There are no birth certificates, health card or any documentary evidence produced and no witness had testified to this fact.

Further to this there is no proof that the deceased was taking care of the other children before his immediate death. After their marriage she only stayed for 3 days then left and went got married and thereafter came and gave birth to her first child at her maternal home. If indeed this was the deceased’s child she would not go to her maternal home.

16. It transpired also that one of the Objector’s children died and was buried at her maternal home. Hence the said deceased child could have been buried at the home of the deceased herein if indeed the child had been sired by the deceased. Again this seems to reinforce the fact that the Objector had indeed been divorced by the deceased and who is said to have returned a goat in the presence of the clan to the Objector’s mother as a sign that the marriage had been nullified and was no more thereafter.

17. It is noted that the Objector also failed to call any of her children to confirm whether indeed they were being taken care of by the deceased. None of the Objectors family members or clan members were called to confirm the issue of her marriage to the deceased and the subsequent divorce. The evidence of these persons would have helped to bolster the Objectors evidence.

18. However, even with the aforegoing observations, this court cannot overlook the clear provisions of Section 29 of the law of Succession Act which define a dependant as:-

(a)A wife or wives or former wives and the children of thedeceased whether or not maintained by the deceased prior to his death.

19. Going by the above provisions, I find the Objector having been a former wife to the deceased will benefit under Section 29 of the Act and therefore be included as a beneficiary of the estate of the deceased. This is so because the Law of Succession Act aforesaid caters for wives married either under statute or under systems of marriage that allows polygamy. There is no requirement that the wife or wives prove that they were dependent on the deceased immediately before his death. There is no need for the wives to establish dependency. A former wife is a person whose marriage to the deceased was dissolved or annulled by a decree of divorce or annulment granted under Kenya law or any custom. The deceased is quoted in the affidavit of the Petitioner to have only lived with Objector for only three (3) days. The deceased is said to have returned a goat to the Objectors mother as a sign that the marriage had been nullified and was no more thereafter.

20. As the Objector has established that she was a former wife of the deceased, I find she is entitled to benefit from the estate as a beneficiary. The request for revocation of grant if granted would be drastic at this juncture. It is appropriate to allow the new administrator Theophylus Mutua Kivindu to continue with the Administration of the estate and who shall thereafter apply for summons for confirmation of grant in which the interest of the Objector as a beneficiary will be taken into account.

21. In the result the Objectors application dated 23/02/2012 partly succeeds and is allowed in the following terms:-

(1)The present Administrator Theophylus Mutua Kivindu to continue being the administrator of the estate of the deceased.

(2)The Administrator to proceed to file for summons for confirmation of grant within sixty (60) days in which the interest of the Objector as a beneficiary will be taken into account.

(3)Each party to bear their own costs.

Dated, signed and delivered at MACHAKOSthis 6th day of OCTOBER, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Kavita for Mulei for Petitioner

Serah Mbulwa Kivindu – Objector in person

C/A: Kituva