[2017] KEHC 9779 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2858 OF 2005

IN THE MATTER OF THE ESTATE OF EPHANTUS NJUGUNA NJOROGE (DECEASED)

WANGARI MBURU………ADMINISTRATOR

VERSUS

MARY WAIRIMU KAMAU….....OBJECTOR

JUDGMENT

FACTS

The deceased Ephantus Njuguna Njoroge died intestate on 13thNovember 1970. He was survived by two widows and the following children:-

a. Bernard Mburu Njuguna;

b. Wilson Kamande Njuguna (deceased);

c. Peter Gitau Njuguna;

d. Joel Njoroge Njuguna;

e. Philip Karari Njuguna;

f. Isabel Njoki Muturi;

g. Ruth Wanjiku Muiruri;

h. Mary Wairimu Kamau (the applicant);

i. Loise Mukami Kimani; and

j. Hannah Muthoni Mwangi;

The only property comprising the estate was Loc. 5/Kabati/387.

The grant of letters of administration for the estate of the deceased was first made to Mburu Njuguna and Joel Njoroge Njuguna on 8th July 2002 and confirmed on 17th December 2004. Wilson Kamande Njuguna petitioned the court for the revocation of grant. The grant was revoked on 19th September 2006 after which Wilson Kamande Njuguna applied to be issued with a fresh grant. Mburu Njuguna cross-petitioned and on 16th July 2007, a new grant was jointly issued to Wilson Kamande Njuguna and Mburu Njuguna. Mburu Njuguna later died on 28th March 2008 and his widow Wangari Mburu filed an application on 13th June 2008 to be substituted as administrator of the deceased’s estate. The beneficiaries consented to the substitution. A new grant was issued on 17th February 2009 appointing Wilson Kamande Njuguna and Wangari Mburu as the administrators of the estate of the deceased.

Wilson Kamande Njuguna later died on 29th October 2010 and an application was successfully filed to have his name removed from the grant of administration to facilitate completion of administration of the estate. The new grant was issued to Wangari Mburu on 4th June 2014 and confirmed on 22nd July 2015. According to the schedule of distribution of the confirmed grant, Wangari Mburu was allocated 1. 5 acres of the land while the remainder of the property was to be equally shared among Ephantus Njuguna Kamande (Wilson Kamande Njuguna’s son)(to hold in trust for himself and his brother Moses Mbuthia Kamande and sister Rachel Gladys Warigia Kamande), Peter Gitau Njuguna, Joel Njoroge Njuguna and Philip Karari Njuguna.

PLEADINGS

Mary Wairimu Kamau protested against the adopted mode of distribution through her affidavit dated 3rd June 2014. A further un-dated affidavit in protest to the mode of distribution of the estate was filed on 7th March 2016by Mary Wairimu Kamau, Isabel Njoki Muturi and Loise Mukami Kimani. The following is the summary of the objectors’ case:

a. That they protest against the proposed mode of distribution as it is against the wish of their late father.

b. That during the deceased’s lifetime, he gave out land parcel number Makuyu/Kimorori/Block iv/33 to one of the beneficiaries who is the deceased’s son namely Mburu Njuguna and that it was the deceased’s wishes that Mburu Njuguna would not inherit any land out of Loc. 5/Kabati/387.

c. That the said Mburu Njuguna is out to deny the deceased’s daughters their entitlement to inherit the deceased’s estate in contravention to the law of succession Act.

d. That they feel neglected and strangers to the estate and as result they have safely kept the title deed till the court makes rationale, appropriate and just orders regarding the distribution of the estate.

e. That they are not in disagreement as to who should administer the deceased’s estate but as to the mode of distribution suggested by their brothers.

The administrator on the other hand filed summons dated 5th February 2016 for orders to issue against Loise Mukami and Mary Wairimu to show cause why they should not hand over the original title of Loc 5/Kabati/387 to the administrators, and that in the alternative, this court do order that the requirement of the original title during transmission of the said property to the respective beneficiaries be dispensed with. The application was supported by the affidavit of Wangari Mburu also dated 5th February 2016 in which she stated that as the administrator of the estate of the deceased, she is unable to effect the distribution of the estate because the objectors have held the title deed and refused to hand it over to her. She prayed for the application to be allowed to enable her finalize the distribution of the estate.

She also filed an affidavit dated 7th April 2016 in response to the affidavit of protest by the objectors in which she stated: that after the deceased died, it took the family some time before petitioning for letters of administration but they finally did and a grant was issued to Mburu Njuguna and Joel Njoroge Njuguna on 8th July 2002; that before the grant could be confirmed one of the beneficiaries Wilson Kamande Njuguna filed an affidavit of protest disputing the mode of distribution of the only property left behind by the deceased and alleging that one of the sons of the deceased,Mburu Njuguna,had been provided for elsewhere by being bequeathed parcel number Makuyu/Kimorori/Block IV/33 and ought not to inherit Block 5/Kabati/387; that all that time the objectors Mary Wairimu Kamau, Isabel Njoki Muturi and Loise Mukami Kimani did not file any protests nor raise any objections and as such the current protest is an afterthought; that when it became obvious that it would become un-economical to subdivide 1. 8 acres of land amongst 4 brothers, three of the beneficiaries namely Joel Njoroge Njuguna, Peter Gitau Njuguna and Philip Karai exchanged their respective portions with one Wilson Kibuna Kungu’s three separate parcels known as Mitubiri/Wempa Block 1/1147, 5838, and 322 and were paid an additional of Kshs.60,000/=. She further stated that the said Joel Njoroge Njuguna, Peter Gitau Njuguna and Philip Karai have now taken possession of the three parcels of land; that it would be extremely difficult to re-distribute the estate owing to the fact that the respective beneficiaries have taken possession of their portions and others disposed of their respective portions. She refuted the allegation that the deceased had during his lifetime given out land parcel number Makuyu/Kimorori/Block iv/33 to Mburu Njuguna and filed receipts to show that the said parcel was solely acquired by Mburu Njuguna through purchasing the same and processing its title.

ISSUES

The matter proceeded for hearing where the parties gave evidence in support of their cases. PW1 Mary Wairimu Kamau stated that as one of the daughters of the deceased, they were not allocated any part of the land that comprised of deceased's estate. DW1 Phillip Karari Njuguna objected to the application on the following grounds; that they filed Succession Cause 126 of 2005 in Thika Law Courts and all beneficiaries were in Court The grant was confirmed and transfers were done to the beneficiaries and some of them have sold the portions to purchasers. I have duly considered each party's pleadings together with all the evidence tendered in court. The following are the issues for determination:

i. What is the law applicable to the distribution of the estate of the deceased?

ii. Whether the deceased during his lifetime bequeathed land parcel number Makuyu/Kimorori/Block iv/33 to Mburu Njuguna (deceased) and whether he is not entitled to the estate of the deceased as a result?

iii. Whether the objectors are entitled to the estate of the deceased?

iv. The mode of distribution to be adopted in the distribution of the estate of the deceased.

DETERMINATION

The deceased died on 13th November 1970. That was before the commencement of the Law ofSuccession Act (Cap 160) on 1st July 1981. Section 2(2) of the Act is clear on the law applicable to the estate of a deceased person dying before the commencement of the Act. It states that:

“The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence and proceed so far as possible in accordance with this Act.”

In the matter of the Estate of Mwaura Mutungi alias Mwaura Gichingo Mbura alias Mwaura Mbura (deceased) (NBR HC Succession Cause No. 935 of 2003),the court held that since the deceased died before the Act came into force, the applicable law on the distribution of the estate was customary law, but the law applicable to the administration and procedural aspects of the estate was the Law of Succession Act. I find that the law application on the distribution of the estate of the deceased herein is Kikuyu customary law.

On whether the deceased bequeathed land parcel number Makuyu/Kimorori/Block iv/33 to Mburu Njuguna and whether he is not entitled to the estate of the deceased as a result, I note that the administrator Wangari Njuguna filed the relevant payment receipts sufficiently establishing that the said parcel was in fact bought by Mburu Njuguna. Further, it is not disputed that Mburu Njuguna was the deceased’s son and as such is entitled to inherit from the estate of the deceased.

On whether the objectors are entitled to the estate of the deceased, the objectors contended that they felt discriminated and prayed for the estate to be redistributed in accordance with the Law of Succession Act. I note the finding above that the applicable law on the distribution of the estate of the deceased is customary law, in this case the Kikuyu Customary law.Since the objectors did not argue that the mode of distribution contravened the Kikuyu Customary Law, I decline to revoke the certificate of confirmation of grant.

Further, I note that the mode of distribution of the estate as laid out in the certificate of confirmation of grant has been consistent over the years. The administrator stated that that was the mode of distribution agreed upon by the rest of the beneficiaries. None of the other beneficiaries has filed an objection to the same, except for Wilson Kamande Njuguna and the objectors herein. The issues raised by their respective objections have been addressed by this court in this ruling and do not in any way invalidate the grant. Finally, I note the administrator’s evidence that some of the beneficiaries have already taken possession of their respective portions and some already sold them off. The estate has pretty much been distributed. As such, I decline to issue any orders revoking the grant or redistributing the estate. I uphold the certificate of confirmation of grant as issuedon 22nd July 2015.

FINAL ORDERS

i. The grant issued to Wangari Mburu on 4th June 2014 and confirmed on 22nd July 2015 is upheld.

ii. The deceased estate shall be distributed according to the certificate of confirmation of grant of 22nd July 2015.

iii. Mary Wairimu Kamau, Isabel Njoki Muturi and Loise Mukami Kimanishall immediately hand over the original title of Loc 5/Kabati/387 to Wangari Mburu, the administrator herein, to effect the distribution of the estate.

iv. Each party to bear their own costs.

DELIVERED SIGNED & DATED IN OPEN COURT ON 10TH NOVEMBER 2017

M.W.MUIGAI

JUDGE

IN THE PRESENCE OF;

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