[2017] KEHC 3114 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 45 OF 2002

In the Matter of the Estate of the Late Jonathan M’Itambu M’Mugambi Alias Itambu Mugambi (Deceased)

SILAS RUGUARU M’ITAMBU…….………..PETITIONER

Versus

GEDION MUTWIRI M’ITAMBU…….....1ST PROTESTOR

GRACE KAGWIRIA ………..…………2ND PROTESTOR

JUDGMENT

1. The late Jonathan M’Itambu M’Mugambi (hereinafter “the deceased) died on 23rd August, 1983. He left behind two properties, namely Abothuguchi/Ruiga/19 and Abothuguchi/Ruiga/700, as forming his estate.On 21st February, 2002, Johnson Muriira M’Tambu applied for Letters of Administration Intestate which were granted to him on 19th November, 2002 and confirmed on 16th June, 2004.

2. On confirmation, the estate was distributed as follows:-

a) Abothuguchi/Ruiga/700

i) Johnson Muriira M’Tambu - 3 acres

ii) Gideon Mutwiri M’Tambu - 1. 44 acres

iii) Robert Nkunja M’Tambu - 3 acres

iv) Silas Ruguaru M’Tambu - 3 acres

v) Mishek Mwenda M’Tambu - 3 acres

vi) Stephen Bundi M’Tambu - 3 acres

b) Abothuguchi/Ruiga/19

i) Johnson Muriira M’Tambu - 2 acres

ii) Robert Nkunja M’Tambu - 2 acres

iii) Silas Ruguaru M’Tambu - 2 acres

iv) Mishek Mwenda M’Tambu - 2 acres

v) Stephen Bundi M’Tambu - 2 acres

5. On 24th September, 2004, the 1st Protestor who is a son to the deceased and his mother Tarasila Kanyua M’Tambu (now deceased) applied for stay of execution of the certificate of confirmation and for leave to object to the grant. The court stayed further execution of the confirmed grant and allowed the two to file a Protest to the distribution. The Protest was filed on 21st December, 2006 wherein the 1st Protestor contended that his mother should be given ½ acre on each of the properties and the rest be shared between him and his other five brothers equally.

6. While the Protest was pending, the mother to the deceased passed on and on 21st September, 2012, Grace Kagwiria applied to be substituted in her place. That application was allowed on 23rd October, 2012. On 28th October, 2014, due to his advanced age, Johnson Muriira M’Tambu was substituted by Silas Ruguaru M’Tambu as the Petitioner. Directions were made that the Protest be determined by way of viva voce evidence.

7. The 1st Protestor filed his witness statement dated 16th February, 2016 which he adopted as his evidence in chief. He told the court that the deceased was married to three wives and had a total of 13 children. The first wife had three children, a son and two daughters; the daughters had since passed on; the second wife had a daughter and two sons all who were alive; that the third wife who was the 1st Protestor’s mother had three sons and four daughters out of which out of which three daughters had passed on. That from the third wife it was him with his three brothers and the 2nd Protestor who were alive.

8. The 1st Protestor further testified that the Petition had been lodged without his knowledge and consent; that the distribution of the estate was schewed against him as he was only given 1. 44 acres while all his brothers got a total of 5 acres each. That he had carried out a lot of developments in Abothuguchi/Ruiga/19 by building a permanent home there yet he was not given a share; he contended that the 2nd Protestor should get a ½ acre from each of the properties.

9. In cross-examination, the 1st Protestor admitted signing the chief’s letter dated 21st February, 2002. He further admitted that the deceased had showed each of his sons in 1974 where they were to live and that is where each one of them was living as at the date of the trial; that the deceased did not make any measurement on the portions he gave his children. That the deceased divided the two properties to each of the 6 sons but did not give any share to any of the daughters. The 1st Protestor later changed his story and stated that the deceased did not distribute any of his properties as he and all his 3 wives were living on Abothuguchi/Ruiga/19.

10. The 2nd Protestor also appeared and testified. In her witness statement dated 16th February, 2016, which she adopted as her testimony, she associated herself with the testimony of the 1st Protestor and stated that it had been agreed that she should get her mother’s ½ acre portions from each of the properties. She admitted in cross-examination that when the deceased was alive, there was no dispute regarding the usage and occupation of the two properties. She stated that she was never invited to the chief’s office when the letter dated 21st February, 2002 was written.

11. The Protest was opposed through the Replying Affidavits sworn by Johnson Muriira M’Itambu on 1st December, 2004 and 7th July, 2012, respectively. The gist of both affidavits was that the Protest was being made too late in the day as the properties had already been subdivided and each beneficiary had a title for his portion; that every beneficiary was occupying his portion as per the wishes of the deceased; that the 1st Protestor knew why he was given a lesser share and that at no time did Tarsila Kanyua seek to be given ½ acre shares in the properties as she was under the care of her son Stephen Bundi M’Tambu in accordance with the directions of the deceased.

12. At the trial the Petitioner filed a statement dated 3rd February, 2016 which he adopted as his evidence. He told the court that during his lifetime, the deceased subdivided his properties and indicated on the ground how his sons were to inherit; that the sons have since been occupying the properties in accordance with the directions of the deceased; that there had been no dispute on the occupation during the lifetime of the deceased. That after the demise of the deceased, the family met at the chief’s office including Tarsila Kanyua together with clan elders and it was agreed that the properties be distributed in accordance with the wishes of the deceased. That all the parties signed the resolution arrived at that meeting.

13. The Petitioner further testified that the Protest was an attempt by the 2nd Protestor to assist the 1st Protestor to get more land out of the estate. That the deceased had distributed Abothuguchi/Ruiga/700into six portions and Abothuguchi/Ruiga/19into five portions. That the deceased had given the 1st Protestor a lesser portion because he was not his own biological son. That the deceased did not give anything to the daughters. In cross-examination, he told the court that during the lifetime of the deceased, the entire family lived on Abothuguchi/Ruiga/19 where the homestead was.

14. Although the parties were directed to file and exchange submissions, none were on record at the time of writing this judgment. Having considered the evidence on record, there is only one issue that fall for determination; whether the estate was properly distributed and if not, how it should be distributed.

15. The Petitioner contended that before he filed this succession cause, a meeting was held at the local chief’s office and it was agreed that the distribution of the estate of the deceased be in accordance with the wishes of the the deceased. That a resolution was arrived at and signed by all who attended. That those in attendance included the 1st Protestor and the widow. The particulars of the agreement were contained on a letter written by the Chief and was signed by all present. At the hearing, that letter was produced and shown to the 1st Protestor who admitted having signed it. The letter is dated 6th November, 2001. The 1st Protestor did not challenge the contents of that letter in any respect. His case is that the distribution was discriminatory as he was given a lesser share as compared to his other brothers and that his mother (replaced by his sister after the mother’s demise) should have been taken care of during the distribution.

16. This court has carefully looked at the said letter, there is a purported distribution of the estate of the deceased. It is signed by six sons of the deceased, the widow and six elders who were present. The mode of distribution therein is the one that was adopted when the Petitioner applied for the confirmation of grant. The 1st Protestor did not dispute the contents of that letter nor explain why he signed it and latter seek to recant the resolution thereof.

17. At the trial, one thing came out clearly, that the deceased must have divided his properties before he died. The Petitioner maintained that the deceased had divided his properties and shown each of his sons where to cultivate during his lifetime. That the distribution undertaken by the Petitioner was as approved by the clan elders at the chief’s office took into consideration the wishes of the deceased.

18. On his part, the 1st Protestor admitted in cross-examination that the deceased had shown each of his sons on the ground where to build. He stated that that is where each of the sons has been living to-date. His testimony was that the deceased did this in 1974 and that he, the 1st Protestor, build his house in 1980. He stated that the deceased had divided Abothuguchi/Ruiga/19 and 700 into six portions each and shown each of the six sons his two portion. That the deceased did not give any of his daughters any portion. However, the 1st Protestor later changed this statement and stated that the deceased did not divide his property as all his wives were living on Abothuguchi/Ruiga/19.

19. The 2nd Protestor also admitted that the deceased had divided his properties during his lifetime. That he had not catered for his daughters. She urged that she be given ½ acre from each property that was meant for the mother.

20. Having considered all the foregoing, it is this court’s finding that; the deceased had divided his properties during his lifetime; he had showed each of his sons where to occupy; he did not give anything to any of his daughters. There was no evidence to show that any of the Protestors had questioned the deceased of his decision during his lifetime although his decision looked discriminative. It is said that the division was done in 1974 and the deceased died in 1983, nine years later. Having failed to question that decision during the nine years the parties lived with it and in the presence of the deceased, they cannot turn around to purport to question that decision now.

21. One other thing, the Petitioner testified that the deceased gave the 1st Protestor a smaller portion because he was not a biological child of the deceased. The 1st Protestor did not deny that fact or challenge it. It is not for the court to re-organize the affairs of beneficiaries once there is evidence that the deceased had organized his affairs in a certain manner and the beneficiaries had not challenged that state of affairs during the deceased’s lifetime.

22. As regards the 2nd Protestor, she admitted that the deceased had already divided his properties by the time he died. She sought to claim through her late mother Tarsila Kanyua. It should be noted that the said Tarsila Kanyua attended the chief’s office and signed the letter dated 6th November, 2001. She never swore any affidavit to challenge the distribution proposed in that letter. The distribution was only challenged by the 1st Protestor. In any event, under section 35 of the Law of Succession Act, Cap 160 Laws of Kenya, she only had a life interest on the properties of the deceased which was extinguished upon her demise.

23. Accordingly, the court finds the Protest to be without merit and the same is hereby dismissed. The stay orders are accordingly discharged. This being a family matter, there will be no order as to costs.

DATED and DELIVERED at Meru this 5th day of October, 2017.

A. MABEYA

JUDGE