[2015] KEHC 5613 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 56 OF 2010

IN THE MATTER OF THE ESTATE OF MUCHOKI JOSEPH STEPHEN KANYORO alias JOSEPH STEPHEN MUCHOKI alias MUCHOKI STEPHEN JOSEPH KANYORO alias MUCHOKI J.S. KANYORO (DECEASED)

SUSAN WAMBUI MUCHOKI..............1ST INTERESTED PARTY/APPLICANT

VICTOR KANYORO MUCHOKI........2ND INTERESTED PARTY/APPLICANT

ISAAC KARANJA MUCHOKI..............3RD INTERESTED PARTY/APPLICANT

ANN RUTH NJERI MUCHOKI............4TH INTERESTED PARTY/APPLICANT

MARGARET NAOMI ........................5TH INTERESTED PARTY/APPLICANT

WANGECHI MUCHOKI.....................5TH INTERESTED PARTY/APPLICANT

RICHARD MACHARIA MUCHOKI...6TH INTERESTED PARTY/APPLICANT

VERSUS

MARY GATHONI MUCHOKI................ 1ST PETITIONER/1ST RESPONDENT

IRENE NJERI MUCHOKI .....................2ND PETITIONER/2ND RESPONDENT

JUDGMENT

The deceased MUCHOKI JOSEPH STEPHEN KANYORO died intestate on 3rd February 2009. He left the following properties which comprise the estate to be distributed to the beneficiaries:-

LR NO. NAIROBI/BLOCK 74/235 Buruburu estate, Nairobi;

LOC. 10/MUKANGU/620 measuring 0. 48 Ha;

LOC. 10/MUKANGU/684 measuring 0. 465 Ha;

46 shares in Wangu Investments Ltd; and

Credit balance in A/C [particulars withheld] at Barclays Bank.

On 19th January 2010 the petitioners/respondents filed a petition for the grant of letters of administration intestate. In the affidavit sworn to support the petition it was stated that the deceased had left the 1st petitioner as the only widow and the 2nd petitioner as the only child (daughter). The grant was issued to the petitioners on 19th May 2010. It was confirmed and certificate issued on 22nd February 2011. The only property subject of the petition was the Buruburu estate house. It was given to the petitioners. An application for rectification was successfully filed with the result that the property was to be equally shared between the two.

On 15th October 2013 the 1st applicant SUSAN WAMBUI MUCHOKI and her children VICTOR KANYORO MUCHOKI (2nd applicant) ISAAC KARANJA MUCHOKI (3rd applicant) ANN RUTH NJERI MUCHOKI (4th applicant), MARGARET NAOMI WANGECHI MUCHOKI (5th applicant) and RICHARD MACHARIA MUCHOKI (6th applicant) filed summons seeking the revocation and or annulment of the grant. The 1st applicant stated that she was the only widow of the deceased, the 1st petitioner having been divorced by the deceased before he died. With her, the deceased got five children (2nd to 6th applicants) and with the 1st petitioner the deceased had got one child (the 2nd petitioner). Her case was that the petitioners had not disclosed the existence of this second family whose members had not been notified of the filing of the petition. Further, the petitioners had failed to disclose that the deceased had the four other properties. The result was that the applicants had not been provided for.

On 11th March 2014 the advocates of the parties recorded a consent before Justice Kimaru whose terms were that the grant that was issued, confirmed and rectified was revoked, and a new grant issued in the joint names of the 2nd petitioner and the 2nd applicant. The matter was mentioned severally to allow for the parties to agree on the distribution of the estate. When an agreement was not forthcoming, it was agreed that each side files written submissions which would be used to share the estate. The submissions were filed. I have considered them.

It is not in dispute that the deceased had two wives during his lifetime. He got married to the 1st petitioner on 14th December 1974 under the now repealed African Christian Marriage and Divorce Act (Cap. 151).Together they got one child (the 2nd petitioner). In 1984 the deceased begun to live with the 1st applicant as husband and wife. In the relationship, they got five children (the 2nd to 6th applicants).

The petitioners are laying claim to only the Buruburu estate house. Their case is that following the 1st petitioner’s marriage to the deceased in 1974, the two jointly purchased the Buruburu estate house in which they lived for 26 years. This was their matrimonial home to which the 1st applicant made no contribution as she was married after its purchase. The petitioners asked that the applicants do share the rest of the deceased’s property. On the other hand, the applicants have asked that all the beneficiaries do equally share all the property of the estate. Their counsel made reference to section 40 of the Law of Succession Act (Cap 160). The 1st applicant stated that beginning 1984 she began maintaining the Buruburu house by paying water bills, electricity bills and land rates. It is not in dispute that by the time the deceased died the house had a tenant. The 1st petitioner stated that they got a tenant to rent the house after the deceased lost employment.

The 1st applicant stated that from the title deed issued on 19th July 1974(VK M2) it was clear that the deceased bought this property before he married the 1st petitioner, in which case, she argued, it cannot be true that the petitioner participated in the purchase. That may be so, but it is not disputed that the deceased and the 1st petitioner settled in this house as their matrimonial home and that was where the 2nd petitioner was born and grew up. There is no evidence that the 1st applicant at any time lived in this house, either alone or with the deceased.

Under section 40(1) of the Act:

“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 estate shall, in the first instance, be divided among the house according to the number of children.”

This is the basis for the argument of the applicants that all the property be shared equally among the beneficiaries. That would mean that the 1st applicant’s house, because of the number of children therein, would get a larger share. However a reading of the decisions in RONO V. RONO [2008] eKLR (G & F) 803 and DOUGLAS NJUGUNA MUIGAI V JOHN BOSCO MAINA KARIUKI AND ANOTHER [2014]eKLR would appear to show that the court has a discretion in determining how the estate of a polygamous deceased should be shared. The number of children in each house should be taken into account. Ultimately, however, the case has to be decided on its peculiar circumstances. Where, for instance, a widow shows that she contributed to the purchase of any of the properties that should be considered. Where, like in this case, the second widow has come into the marriage many years after the first widow had been settled in a matrimonial home by the deceased, that has to be taken into account. In any case, under Article 45(3)ofthe Constitution of Kenya 2010:-

“Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage.”

Ideally, the petitioners should lodge a claim to share not only on the Buruburu house but also to the rest of the property, but have restricted themselves to the former.

I have considered the facts of this case and determine that the petitioner shall get NAIROBI/BLOCK/74/235. I order that the property be registered in the joint names of the petitioners so that each has an equal claim to it.

The 1st applicant’s house shall get LOC.10/MUKANGU/620, LOC.10/MUKANGU/684, 46 shares in Wangu Investment Limited and the money in A/C No. [particulars withheld] at Barclays Bank. Each of the applicants shall have equal share to these properties. Costs shall be borne by the parties.

DATED and DELIVERED at NAIROBI this 10th day of March 2015

A.O. MUCHELULE

JUDGE