[2010] KEHC 3826 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

Succession Cause 54 of 1996

IN THE MATTER OF THE ESTATE OF MUNUHE GITHEGI – DECEASED

STEPHEN MACHARIA MUNUHE………………………….PETITIONER

Versus

GICHUHI MUNUHE

DANIEL CHARLES MACHARIA MUNUHE……………..PROTESTERS

R U L I N G

On 10th January, 1984 Munuhe Githegi hereinafter referred to as “the deceased”, then aged 90 years passed on due to natural causes. He died intestate. It follows therefore that his estate would have to be administered under the Law of Succession Act that came into force on 1st July, 1981.

Apparently, the deceased was polygamous and was married to three wives namely Wacheke Munuhe – 1st house, Gakuhi Munuhe – 2nd house and Wangui Munuhe – 3rd house. However all the three wives are now deceased. The three wives had the following children with the deceased though:-

1ST HOUSE

(i) Watson Mutiri (deceased) but represented in this cause by his widow, Isabel Muchiru Muturi.

2ND HOUSE

(i) Stephen Macharia Munuhe, the petitioner

3RD HOUSE

(i) Githigei Munene (deceased represented by his widow Wangu Githegi

(ii) Gichuhi Githegi

(iii) Daniel Macharia

(iv) Eustace Maina

It is common ground that the deceased owned a piece or parcel of land known as Ruguru/Karuthi/159 hereinafter referred to as “the suit premises” measuring approximately 2. 59 hectares or 5. 8 acres.

On 28th February, 1996, Stephen Macharia Munuhe, the petitioner filed the instant proceedings for the grant of letters of administration intestate with him as the sole administrator. The same were duly issued to him on 12th June, 1998.

On 22nd September, 2008, the petitioner filed an application seeking the confirmation of the temporary grant aforesaid. He proposed in the affidavit in support of the application that the suit premises be shared equally between the 3 houses. That application was met with stiff resistance from Gichuhe Munuhe and Daniel Charles Macharia Munuhe, hereinafter referred to as “the protesters”. In their affidavit of protest, they stated that the proposed manner of distribution of the estate of the deceased into three equal portions according to houses was unacceptable as it flew in the face of the provisions of the Law of Succession Act. Instead, they were of the view that the estate of the deceased be shared in accordance with the provisions of Section 40 of the Law of Succession Act. That section provides interlia;

“(I) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”

On 2nd October, 2009, the cause came before me for directions. Through Mr. Kiminda for the petitioner and Mr. Muthigani for protesters, parties agreed to the matter being determined on the affidavits on record and written submissions. Subsequently respective parties filed their written submissions and cited several authorities which I have carefully read and considered.

As already stated the dispute between the petitioner and protesters revolve around how the estate of their deceased father should be shared out. The petitioner with the support of Isabel Muchiru Muturi takes the view that the estate ought to be shared into 3 equal portions representing the 3 houses whereas the protestors want the estate shared in accordance with Section 40 of the law of Succession Act meaning that the estate ought to be shared equally between the children of the deceased. Basically then the issue herein boils down to proper interpretation of section 40 of the Law of Succession Act. That section has been interpreted in several authorities to wit, Catherine Nyaguthi Mbauni V Gregory Maina Mbauni (2009) eKLR, In the estate of Stephen Nyongo Mutinda (deceased) (2006)eKLR and Elizabeth W. Kipngeny V Mary Kerubo Kipngeny (2006)eKLR to mention but a few. The court of appeal in the case of Catherine Nyaguthi Mbauni (supra) stated that;

“….In the end, the view we take on the application of Section 40 to the estate of the deceased is that the net estate of the deceased should be shared out at the ration 3. 5 which reflects the number of units in the two houses of the deceased….”

In Re the estate of Stephen Nyongo Mutinda, Koome J observed;

“…As regards the issue of whether the court should make a specific allocation to each beneficiary, this is quite answered by the above provisions of the law. My task is to allocate the assets to particular household and thereafter the shares of the beneficiaries in the case of a widow shall have a life interest and thereafter to her children in equal shares….”

Finally in the case of Elizabeth W. Kipngeny, (supra) the same judge observed; “….The deceased was polygamous and his estate should therefore be distributed according to section 40 of the law of Succession which provides…..” “(I) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”In this case the first house has seven children plus a widow and the second house has two children in addition to the widow. The deceased estate should be divided among the eleven units or as the protester has proposed 70% to the 1st house and 30% to the second house.”I quite agree with the elucidation of the law in the above authorities on the subject at hand. It would appear therefore that in distributing the estate of the deceased who was polygamous, it has to be on the basis of the number of children in each house. In other words, such estate cannot be distributed equally between the houses without taking into account the number of children in each house. It would indeed cause absurd results if such position was to be taken. Supposing one house had one child and another had 10. Can it be said that it would be fair to distribute such estate equally between the two houses without taking into account the number of children in each house. One house would end up having a huge chunk of the estate to the detriment of the other. In his written submissions, Mr. Kiminda has alluded to this issue when he states that “…. Merely because the 3rd house had three persons interested in the estate ought not to be the basis for the 3rd house to get a bigger share of the estate.”

All the widows of the deceased have passed on. Thus the consideration of any wife of the deceased as an additional unit does not apply. In the circumstances of this case, the estate of the deceased ought to be distributed among the 3 houses bearing the number of children in each house. It is common ground that the 1st house had only one beneficiary, Isabel Muchiru Muturi, a daughter in law, the 2nd house is represented by the petitioner and the children of his later brother, Peterson Kariithi Munuhe and the 3rd house had 3 children and a daughter in law. Accordingly there are seven units. The suit premises shall thus be distributed proportionally among those seven units. In other words the net intestate of the deceased shall be distributed proportionally in the following ratio house 1, 1:7, house 2, 2:7 and 3rd house, 4:7. As this is a family matter, each party shall bear its own costs.

Dated and delivered at Nyeri this 21st day of January, 2010.

M.S.A. MAKHANDIA

JUDGE