[2017] KEHC 1881 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 660 OF 2015

In The Matter of the Estate of Bernard Kanyuru Miteri (Deceased)

WILSON KITHINJI…………………….............PETITIONER

Versus

GEORGE MWENDA KANYURU…………….....OBJECTOR

____________________________________________________________

JUDGMENT

Distribution of estate

[1] I am considering Summons for Confirmation of Grant dated 15th September, 2016 for confirmation of the grant issued to WILSON KITHNJI. The application is supported by the affidavit of WILSON KITHINJI. The Petitioner in paragraph 5 of the supporting affidavit proposes the estate to be shared as follows:-

1. AGNES KINYA 0. 0625 ACRE

2. MARY KAGWIRIA 0. 0625 ACRE

3. STANLEY MUTWIRI ¼ ACRE

4. FREDRICK MURIUNGI KANYURU ¾ ACRE

5. FAITH NCABIRA BERNARD ½ ACRE

6. FLORAH GACHERI KANYURU 0. 0625 ACRE

7. DOUGLAS MUTAI KANYURU ¾ ACRE

8. HELLEN KATHAMBI GITONGA 0. 0625 ACRE

9. GEORGE MWENDA ¾ ACRE

The Protest

[2] By way of affidavit of protest to the confirmation dated 25th January 2017 and filed by GEORGE MWENDA it was deposedinter alia:-

(a) That the Objector is a son of the deceased and so a beneficiary of the estate

(b) That the Deceased had expressly indicated how he wished his estate to be distributed.

(c) Whereas he does not have any problem with the sisters getting their shares, he stated that the deceased had expressly said that the daughters should each receive ¼ an acre.

(d) That A K and S M are not of sound mind. Their share should be held in trust by one of their brothers or sisters rather than giving them directly as has been proposed by the petitioner.

(e) That the petitioner did disclose the proposed distribution before the family.

(f) That he was not involved anywhere in the succession cause and he did not sign any of the documents filed in court.

Petitioner’s response

[3] The petitioner’s replies to the Protest through his affidavit dated 10th March 2017 include:-

(a) That the Protestor has not been co-operating with the family members in the filing of this succession and that he refused to sign the documents thereto.

(b) That all other beneficiaries consented to the mode of distribution except the Protestor.

(c) That the chief made several attempts to unite the Protestor with other family members but he refused.

(d) He affirmed that Agnes Kinya and Stanley Mutwiri are not of sound mind but are catered for as per the wishes of the Deceased.

(e) That the Protestor is lying in stating that the sharing of the estate of the Deceased was not disclosed to the family when the family members financed the filing of the cause.

DETERMINATION

[4] This decision relates to confirmation of grant of letters of administration of the estate of Bernard Kanyuru Miteri (deceased) issued to the Petitioner on 7th April 2016. As a matter of law, the court shall consider all affidavits and any written Protest filed. I shall so proceed.

[5] First things first, the following facts are not in dispute. These proceedings relate to the estate of Bernard Kanyuru Miteri (deceased) who died on 22nd December 2013 and was survived by:

1. A K - Daughter

2. Mary Kagwiria – Daughter

3. S M – Son

4. Fredrick Muriungi Kanyuru – Son

5. Faith Ncabira Bernard – Daughter

6. Florah Gacheri Kanyuru – Daughter

7. Douglas Mutai Kanyuru – Son

8. Hellen Kathambi Gitonga – Son

9. George Mwenda – Son

10. Wilson Kithinji - Son

His estate includes:

a) LAND SETTLEMENT SCHEME NO.MERU/NTIRIMI/16

[6] The significant quarrels by the Objector are:-

(a) That the deceased had expressed his wishes on how the estate should be shared amongst his children.

(b) That Agnes and Stanley are mentally challenged and that their shares should be held in trust for them rather than assigning them directly to them.

The Petitioner confirmed that the two persons in (b) above are persons with disability. Taking these averments to be true, I agree that a trust has arisen in their favour- a fact that throws me to the provisions of section 71(2A) and 84 of the Law of Succession Act. The former requires the court, subject to section 66 and 56 of the Law of Succession Act, to appoint one or more other administrators to act as joint administrators. See section 71(2A) below:-

71(2A) Where a continuing trust arises and there is only one surviving administrator, if the court confirms the grant, it shall, subject to section 66, appoint as administrators jointly with the surviving administrator not less than one or more than three persons as proposed by the surviving administrator which failing as chosen by the court of its own motion.

Section 84 designates such administrators to be trustees for the continuing trust. See Section 84 below:-

84. Personal representatives to act as trustees in certain cases

Where the administration of the estate of a deceased person involves any continuing trusts, whether by way of life interest or for minor beneficiaries or otherwise, the personal representatives shall, unless other trustees have been appointed by a will for the purpose of the trust, be the trustees thereof:

Provided that, where valid polygamous marriages of the deceased person have resulted in the creation of more than one house, the court may at the time of confirmation of the grant appoint separate trustees of the property passing to each or any of those houses as provided by section 40.

[7] In light thereof, the first assignment for the court is to appoint one or more persons but not to exceed four to be joint administrators for purposes of the continuing trust which has arisen. The administrator did not propose any person for such appointment despite confirming the status of the two persons. Similarly, the Objector did not propose any person for such appointment although he stated that any of his brothers or sisters may be so appointed- this is good submission. Accordingly, in exercise of discretion of the courtunder section 66 of the Law of Succession Act, and in the best interest of all persons concerned, I hereby appoint MARY KAGWIRIA to be joint administrator with the Petitioner. I have considered the nature of the trust, the limitation on the beneficiaries which gave rise to the trust, and the obligations which would fall on the shoulders of trustees herein. The two shall also be trustees for Agnes Kinya and Stanley Mutwiri and shall account to the court on the management of the shares due to Agnes Kinya and Stanley Mutwiri at such times as shall be designated by the court.

[8] The first hurdle has been surmounted. I will now proceed to determine distribution of the estate of the deceased. It bears repeating that, from the record and averments of parties, the deceased died on 22nd December 2013 and was survived by:

1. A K - Daughter

2. Mary Kagwiria – Daughter

3. S M – Son

4. Fredrick MuriungiKanyuru – Son

5. Faith Ncabira Bernard – Daughter

6. FlorahGacheriKanyuru – Daughter

7. Douglas MutaiKanyuru – Son

8. HellenKathambiGitonga – Son

9. George Mwenda – Son

10. Wilson Kithinji – Son

His estate includes:

(a) LAND SETTLEMENT SCHEME NO.MERU/NTIRIMI/16

[9] The Objector seems to disagree with the mode of distribution by the Petitioner on two fronts. One; that the deceased had expressed his wishes on how the estate should be distributed. He did not however state the entire spectrum of those wishes. He only stated that the deceased wished that the daughters will inherit a ¼ acre each. Two; that Agnes and Stanley are persons with disability and their shares should be held in trust for them. I agreed with that statements and I have already deal with it. However, I find one great dilemma. From the record, it seems Agnes and Stanley signed the affidavit in support as well as the Consent to the Mode of Distribution of the Estate. For this, I order the two administrators and trustees for Agnes and Stanley to file within 30 days a medical report on the conditions of Agnes Kinya and Stanley Mutwiri. Appropriate orders will thereafter be made. Of importance, it seems the other daughters did not contest and are satisfied with the lesser share allocated to them. I will therefore not insist on equal sharing of the estate amongst all parties as there seems to be a general agreement on that aspect. Accordingly, I order that the estate herein shall be shared as follows:-

1. A K 0. 0625 ACRE

2. MARY KAGWIRIA 0. 0625 ACRE

3. S M ¼ ACRE

4. FREDRICK MURIUNGI KANYURU ¾ ACRE

5. FAITH NCABIRA BERNARD ½ ACRE

6. FLORAH GACHERI KANYURU 0. 0625 ACRE

7. DOUGLAS MUTAI KANYURU ¾ ACRE

8. HELLEN KATHAMBI GITONGA 0. 0625 ACRE

9. GEORGE MWENDA ¾ ACRE

[10] The share of A K and S M shall be held in trust for them by the two administrators until this court makes further orders upon receipt of the report ordered herein above. This being a succession cause involving close family members, I order that each party shall bear own costs. It is so ordered.

Dated, signed and delivered in open court at Meru this 13th day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

Petitioner there

Objector there

Agnes Kinya -- absent (sick)

Mary Kagwiria – present

Stanley Mutwiri - present

Fredrick Muriungi - present

Faith Ncabira - absent ( sick)

Florah Gacheri - present

Douglas Mutai - present

Hellen Kathambi

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F. GIKONYO

JUDGE