[2023] KEHC 25835 (KLR)

Wachira v Wanjohi & 4 others (Succession Cause E010 of 2022) [2023] KEHC 25835 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25835 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause E010 of 2022

FN Muchemi, J

November 16, 2023

IN THE MATTER OF THE ESTATE OF JOHN MWANGI WACHIRA (DECEASED)

Between

Virginia Wairimu Wachira

Applicant

and

Peter Muriithi Wanjohi

1st Protestor

John Wachira Wanjohi

2nd Protestor

Charles Njonjo Wanjohi

3rd Protestor

Joseph Mbuthia Wanjohi

4th Protestor

Grace Wangechi Wanjohi

5th Protestor

Judgment

Brief facts 1. The matter is coming up for the determination of the protest dated 16th January 2023 in opposition to the Applicants Summons for Confirmation of grant dated 19th December 2022.

2. The matter proceeded by way of viva voce evidence.

The Protestors’ Case 3. PW1 testified that he is a cousin of the deceased in that the deceased’s mother was a sister to his father and that in 1987, the deceased called his father and told him to go and settle on his land. PW1’s father then left his ancestral land LR. No. Aguthi/Gatitu/90 and settled on the land of the deceased. PW1 testified that his father died in the year 1998 when PW1 was aged 18 years. The mother of PW1 had left their home when he was 12 years old. He further testified that the deceased brought up PW1 and his siblings, paid their school fees, as well as provided them with food and clothing. The 1st protestor further stated that the 2nd protestor was in Form II at the time the deceased died but has since then, attained a master’s degree.

4. The 1st protestor stated that before the deceased died, bad blood developed between the protestors and the deceased who caused the first protestor to be charged with a criminal case for the offence of trespass on LR. No. Aguthi/Gatitu/90 in which he was convicted and fined Kshs. 500/-. The 1st protestor further testified that the 1st registered owner of LR. No. Aguthi/Gatitu/90 was his grandfather then the land was transferred to the deceased. Additionally, PW1 stated that he and his siblings filed ELC Case No. 226 of 2015 in Nyeri claiming ownership of LR. No. Nyeri/Uasonyiro/82 but the case was dismissed as they had not occupied the land for more than 12 years. The 1st protestor stated that he then filed Summons for Revocation of grant in Succession Cause No. 671 of 2011 but was directed to lodge his claim at the Environment and Land Court. Acordingly to PW1, the protestors have been cultivating on LR. No. Nyeri/Uasonyiro/82 since his grandfather was alive and that he resides on the said parcel of land with his two brothers and as such they are entitled to the parcel of land. On cross examination, PW1 testified that the protestors filed ELC Case No. 226 of 2015 claiming ownership of LR. No. Uasonyiro/82 but they lost the case and the court ordered them to give vacant possession to the deceased.

The Petitioner’s Case 5. DW1, the petitioner testified that she is the widow of the deceased. He further evidence was that the protestors filed a suit in the Environment and Land Court Nyeri, ELC Case No. 226 of 2015 claiming ownership of half of LR. No. Nyeri/Uasonyiro/82 and the court dismissed the suit and ordered the protestors to give vacant possession of the suit property. The petitioner further testified that the said orders of the court which were issued on 17/3/2022 have not been overturned. The protestors were restrained permanently in any way from entering upon, trespassing and/or continuing to trespass or commit acts of waste of whatever nature on the suit premises.

6. Further, DW1 testified that the 1st protestor was charged with the offence of trespassing onto LR. No. Aguthi/Gatitu/90 on 16th May 2018, in the Chief Magistrate’s court at Nyeri in Criminal Case No. 371 of 2017 whereas he was convicted for the offence and was fined Kshs. 500/-. Additionally, the ownership of LR. No. Aguthi/Gatitu/90 was contested by the protestors in Nyeri High Court Succession Cause No. 671 of 2011. The outcome was that on 30th June 2022, the claim was struck out on grounds that the court had no jurisdiction to hear and determine the matter.

7. On cross examination, the petitioner testified that the deceased employed the protestors’ father as a caretaker in the farm. The deceased used to help the protestors during his lifetime with basic needs. The petitioner further stated that the protestors were orphans and that the deceased had educated the 2nd protestor up to University level. The petitioner further testified that LR. No. Aguthi/Gatitu/90 belonged to one Elizabeth Wanja, her mother in law and that the protestors have no legal right of inheritance in regard to that parcel of land.

8. Parties put in written submissions.

The Protestors’ Submissions 9. The protestors rely on Section 29(b) of the Law of Succession Act and submit that the deceased had taken them in as his own children by educating, housing and clothing them as well as paying for their medical expenses. The protestors therefore argued that they proved that they were being maintained by the deceased prior to his death. The protestors further submitted that that the deceased allowed them to fully occupy LR. No. Nyeri/Uasonyiro/82 exclusively and possess it to the exclusion of the administratrix and her family. They further argue that the administratrix confirmed that the deceased had been taking care of the protestors since 1997 and that she confessed that it was not the wish of the deceased to make them homeless as the deceased had offered to give them 3 acres.

10. The protestors relied on the case of Re Estate of Albert Musyoka Mueti (Deceased) [2020] eKLR and Section 27 of the Law of Succession Act and urged the court to exercise its discretion and make provision for them as dependants and/or beneficiaries of the deceased. The protestors further submitted that they are children of the deceased pursuant to Section 3(2) of the Law of Succession Act. Upon being orphaned, the deceased recognized them as his children and assumed permanent responsibility over them by educating, clothing and housing them and paying their medical bills and giving them LR. No. Nyeri/Uasonyiro/82 exclusively for their use. Therefore, the protestors argue that the deceased became their father as opposed to their cousin.

11. The protestors further submit that the actions of the deceased indicate that the wishes of the deceased were that the protestors reside on LR. No. Nyeri/Uasonyiro/82 by dispossessing them of LR. No. Aguthi/Gatitu/90 and pursuing a succession cause over the matter to their exclusion even though that was their ancestral birth right. To make matters worse, the deceased pressed charges of trespass against the 1st protestor in Criminal Case No. 371 of 2017. As such, the protestors argue that they are rightful dependants entitled to LR. No. Nyeri/Uasonyiro/82 to share equally amongst themselves.

The Petitioner’s Submissions 12. The petitioner relied on Section 29 of the Law of Succession Act and submitted that the protestors are not dependants of the deceased. Further, Section 107 and 108 of the Evidence Act places the burden of proof on the protestors to show that the deceased was maintaining and providing for them. However, the petitioner submitted that the protestors made general statements on how the deceased maintained them and paid school fees for the 2nd protestor. They did not provide any cogent evidence like receipts of payment of school fees or other expenses were provided. The petitioner relied on the cases of Trust Bank Ltd vs Paramount Universal Bank Limited & 2 Others (2009) eKLR and Mpatinga Ole Kamuye vs Meliyo Tipango & 2 Others (2017) eKLR and submitted that the protestors have failed to show that the deceased used to maintain them.

13. The petitioner further submitted that the issues of ownership in respect of LR. No. Nyeri/Uasonyiro/82 were determined on 17th March 2022 in ELC Case No. 226 of 2015 and the court directed that the protestors give the deceased vacant possession. The orders of the ELC Court are still subsisting and thus the protestors were permanently restrained from entering upon, trespassing and or continuing to trespass or commit any acts of waste of whatever nature on LR. No. Nyeri/Uasonyiro/82, the same parcel of land that the protestors purportedly seek to benefit from.

14. The petitioner further relied on Section 26 of the Land Registration Act and submits that LR. No. Nyeri/Uasonyiro/82 is registered in the name of the deceased and thus forms part of the deceased’s estate. The petitioner contends that the 1st protestor confirmed that there was no formal written sale agreement to prove that the deceased had requested their late father to leave his ancestral land and settle in LR. No. Nyeri/Uasonyiro/82. Additionally, there is no consent from the land control board and transfer to that effect thus there has never been any transfer carried out by the deceased in favour of the protestors or any other person. Hence the petitioner argues that the said parcel of land remains free property of the estate of the deceased subject to distribution to the beneficiaries.

15. The petitioner thus urges the court to dismiss the protest with costs awarded to her pursuant to Section 27 of the Civil Procedure Code and the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai Estate & 4 Others [2013] eKLR.

Issue for determination 16. The main issue for determination is whether the protest has merit.

The Law Whether the protestor has merit. 17. It is not in dispute that the deceased died on 29th December 2021 and was survived by the following:-a.Virginiah Wairimu Mwangi Wachira – widowb.Elizabeth Wanja Wachira – daughterc.Francis Wanjohi Wachira – sond.Lilian Wanjiku Wachira – daughtere.Evan Njoroge Wachira – daughter

18. The protestors claim to be cousins to the deceased and also his dependants The protestors also claim to be beneficiaries the estate of the deceased. It is further argued that the deceased told their father to leave their ancestral land being LR. Aguthi/Gatitu/90 and move into his land LR. No. Nyeri/Uasonyiro/82 in 1987. In compliance with the alleged invitation, the protestor’s father now deceased, did so. The father of the protestors died in 1998 and their mother is said to have ran away from home. The ddeceased maintained the protestors by taking them to school, clothing and feeding them. As such, the protestors argue that they are dependants of the deceased and ought to inherit from his estate. The petitioner argues that the protestors are neither dependants not beneficiaries of the deceased. It was further argued that the protestors have not proved dependency in that no such evidence was produced. The applicant further argues that the deceased hired the protestors’ father as a caretaker of their land and thus did not make an invitation to him to move to his land LR. No. Nyeri/Uasonyiro/82 as claimed by the protestors.

19. Section 29 of the Law of Succession Act provides:-For the purposes of this part dependent means-a.The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;b.Such of the deceased’s parents, step parents, grandparents, grandchildren, step children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers and half sisters, as were being maintained by the deceased immediately prior to his death; andc.Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

20. Section 3(2) of the Law of Succession Act describes a child to:-Include a child conceived but not yet born (as long as that child is subsequently born alive) and, in relation to a female person, a child born to her out of wedlock, and, in relation to a male person, any child whom he expressly recognized or in fact accepted as a child of his own or of whom he has voluntarily assumed permanent responsibility.

21. Thus the protestors are required to demonstrate that they were dependants of the deceased and thus entitled to share in his estate. The standard and burden of proof provided by the Evidence Act ought to be discharged for. He who alleges must prove. Section 107 of the Evidence Act places the burden of proof on the party that alleges a fact. In Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3 Others (2014) eKLR the Supreme Court held inter alia:The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue.

22. It is thus incumbent that the protestors prove on a balance of probabilities that they were dependants of the deceased pursuant to Section 3 and 29 of the Law of Succession Act. The protestors in my view have given blanket averments that the deceased used to maintain them by paying their school fees, feeding and clothing them and paying for their medical expenses. The only specific detail given by the 1st protestor is that the deceased took the 2nd protestor to school and he currently has a masters’ degree. He did not produce any evidence in form of documentary evidence or even call his siblings as witnesses to demonstrate that the deceased paid his school fees. Even assuming, the deceased paid for 2nd protestors education, this by itself does not make the 2nd protestor a dependant under section 29 of the Act. Furthermore, the protestors have not shown any degree of permanency in responsibility by the deceased over them as set out in the standard in Section 3(2) of the law of Succession Act as was stated in the case of E.M.M vs I.G.M & Another [2014] eKLR where the court observed:-Additionally, the definition of a ‘child’ in Section 3(2) of the Law of Succession Act includes a child whom the deceased has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility. We agree with the respondent that the appellant has to show a reasonable degree of permanency in the responsibility that the deceased is alleged to have voluntarily assumed over the appellant. Episodic support, as is the case here will not suffice.

23. As such, the provisions of Section 3 (2) of the Act have not been supported by any evidence. It was not demonstrated that the deceased took the protestors or any of them into his home as his children. No degree of permanency in responsibility by the deceased over the protesters has been demonstrated in this cause.

24. The protesters filed a suit claiming half of the deceased’s land ELC Case No 226 of 2015 which was dismissed. The protesters seem to be playing a ping pong game in that after failing to succeed in their claim of adverse possession, they have come into these succession proceedings claiming to be dependants and children of the deceased. Having failed to succeed in the ELC case, the protesters need not have pursued succession proceedings unless they had new evidence that would have justified change of goal post. The orders of the ELC Court permanently prohibited the protesters from trespassing on the deceased’s land L.R Nyeri/Uasonyiro/82. The said orders were not appealed against as and are valid to date. Having failed to get a remedy in the claim of adverse possession or trust, the protesters do not expect to get a remedy in this Succession Case.

25. Consequently, I find no merit in the Protest dated 6th January 2023 and it is hereby dismissed.

26. The Summons for Confirmation of grant are not opposed by any of the deceased’s children. A consent was filed on 20/12/2022 signed by all the beneficiaries. The mode of distribution has taken into consideration all the beneficiaries of the deceased.

27. The grant issued in favour of Virginia Wairimu Mwangi Wachira on 10th May 2022 is hereby confirmed in terms of paragraph 4 of the Applicant’s affidavit thus:-ASSET BENEFICIARY SHARENyeri/Uasi-Nyiro/82 Virginia Wairimu MwangiWachira AbsoluteAguthi/Gatitu/90 Virginia Wairimu MwangiWachira Jointly in equal sharesElizabeth Wanja WachiraFrancis Wanjohi WachiraLilian Wanjiku WachiraEvan Njoroge WachiraNairobi/Block 79/27 Virginia Wairimu MwangiWachira Jointly in equal sharesElizabeth Wanja WachiraFrancis Wanjohi WachiraLilian Wanjiku WachiraEvan Njoroge WachiraDonyo Sabuk Komarock Virginia Wairimu MwangiBlock 1/9749 Wachira Jointly in equal sharesElizabeth Wanja WachiraFrancis Wanjohi WachiraLilian Wanjiku WachiraEvan Njoroge WachiraPlot No. 209/7388 – Virginia Wairimu MwangiUhuru Estate Wachira Jointly in equal sharesElizabeth Wanja WachiraFrancis Wanjohi WachiraLilian Wanjiku WachiraEvan Njoroge WachiraMotor vehicle Reg. No. Virginia Wairimu Mwangi Wachira AbsolutelyKBS 32OAMonies inCooperative Bank A/C Virginia Wairimu Mwangi Wachira AbsolutelyNo.01109554511700Monies inEcobank (K) Ltd A/C Virginia Wairimu Mwangi Wachira AbsolutelyNo.6598003088(Formerly0053150189177011)Monies inFamily Bank A/C No. Virginia Wairimu Mwangi Wachira Absolutely038000025756

28. Certificate of confirmation to issue.

29. Each party to meet their own costs.

30. It is hereby so ordered.

F. MUCHEMIJUDGEDATED AND SIGNED AT NYERI THIS 16HDAY OF NOVEMBER, 2023.