REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU SUCCESSION CAUSE NO. 544 OF 2013 (Original Succession Cause No. 2812 of 1995 at Nairobi) IN THE MATTER OF THE ESTATE OF M’MUGA M’MAGIRI (DECEASED) SILAS MUTHURI M’LIKANYA ........................................................APPLICANT VERSUS LAND REGISTRAR, MERU CENTRAL DISTRICT..................RESPONDENT SOFIA GAKII ......................................................................INTERESTED PARTY JUDGMENT Cause dogged with acrimony [1] The initial Grant letters of administration intestate were issued to Jerica Kagwiria M’Muga on 25 th July 2007 in SUCCESSION CAUSE NO. 2812 OF 1995 AT NAIROBI. The grant was however revoked by the court 4 th December 2016 and ordered that the grant letters of administration intestate be issued to Jerica Kagwiria M’Muga jointly with Charity Igoki M’Muga and Douglas Mwiti M’Muga or any one or two of them, were given liberty to file a fresh application for confirmation within 90 days. [2] On 1st December 2015 the court noted that in spite of the above orders issued by Onyancha J the administrators had failed to apply for confirmation of the grant. It resulted in several warrants of arrests being issued against the administrators. The court also ordered the filing of inventories on the assets of the deceased which were filed by the beneficiary/ respondent, Jerica Kagwiria and Douglas Mwiti, This was to assist the court ascertain the assets of the estate as there had been allegations that some of the estate property had been sold to third parties. [3] The 1st administrator, Jerica Kagwiria, filed an application for confirmation of grant dated 5 th July 2018 which was supported by her affidavit sworn on the same date. She provided her mode of distribution which is a replica of the schedule in the certificate of confirmation of grant dated 25th July 2007 that was revoked. [4] Charity Igoki proposed her mode of distribution in her supporting affidavit to the application for confirmation of grant dated 10 th July 2018. Her mode of distribution was supported by Sofia Gakii through her affidavit of protest to confirmation of grant sworn on 8 th October 2018. She protested against the application filed by Jerica who she stated excluded her sister Judith Kananu M’Muga from the estate. On the other hand, Douglas Mwiti M’Muga filed his affidavit of protest sworn on 21 st November 2018 where he suggested his own mode of distribution. ANALYSIS AND DETERMINATION [5] This case was dogged by acrimony and mistrust and breach of trust. But, I hope that, by this judgment, the long drawn controversies will be resolved. Two issues arise; i. The purchasers interest; whether they are entitled to the estate property sold to them; and ii. How the estate is to be divided. Purchasers’ interest [6] It is not in dispute that Plot No. 2890/83 Timau Market was sold by the deceased to Lawrence Marangu. Such property is given to the
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purchaser and if the deceased had not completed the transaction, the court will call upon the administrators to complete the transaction. There is however a startling situation; the applicant Silas Muthuri M’Linkanya claims that he bought 3 acres out of Land Title No. Abothuguchi/Mariene/868 which he has developed extensively. In Jerica’s mode of distribution she allocates the said 3 acres to the applicant. In the mode of distribution provided by the representatives of the 1 st and 2nd house they have distributed parcel No. 868 to the 2nd and 3rd house. Jerica is in the 3 rd house and she has distributed the 3 acres to the applicant. Jerica has already enjoyed fruits of the sale. Jerica seems to be the wrong doer here. She has given the 3 acres to the Applicant and no objection is coming from her house. In the circumstances, I direct that the share of the third house in the said land will go to the applicant as proposed by Jerica. Of beneficiaries [7] I will now establish the rightful beneficiaries and the estate property. All administrators listed the same people as beneficiaries of the estate apart from Charity Njoki who added Judith Kananu as a daughter of the deceased. Sofia confirmed that she is indeed her sister who was left out. These claims were not refuted by any of the other parties. Accordingly, the deceased was survived by: First House 1. Charity Igoki - Wife 2. Susan Gauku - Daughter 3. Fredrick Muthuia - Son (deceased) 4. Salome Kanyua - Daughter 5. Abel Mwenda - Son 6. Meshack Mutua - Son (deceased) 7. John Kirimi - Son Second House 8. Lydia Ncurubi M’Mua - Wife (deceased) 9. Douglas Mwiti M’Muga - Son 10. Julius Mutuma - Son 11. Faith Karambu Daughter (deceased) 12. David Nturibi - Son (deceased) 13. John Mugambi - Son 14. Sofia Gakii - Daughter 15. Judith Kananu - Daughter Third House 16. Jerica Kagwiria - Wife 17. Nancy Kajuju - Daughter 18. James Murithi - Son 19. Erick Muthuri - Son 20. Elosy Muthoni - Daughter 21. Leonida Nkirote - Daughter Of estate property [8] Various inventories were filed on estate property. But, the inventories contain contradictory information. But what seems to be in
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consensus is that the following form part of the estate: 1. Abothuguchi/Lower - Kiija/225 2. Abothuguchi/Mariene/868 3. Abothuguchi/Mariene/372 4. Land Reference Kiamuri ‘A’ 118 5. Plot No. 22 ‘A’ Kangeta Market 6. Plot No. 3 Kangeta Market 7. Plot No. 456 Isiolo 8. Plot No. 2 ‘A’ Rugusu Market 9. Plot No. 2890/83 Timau Market 10. Plot No. 3 ‘B’ Gatimbi Market [9] According to Douglas Mwiti the deceased had shares at Meru Co-Union. Jerica added that the deceased had accounts at Kenya Commercial Bank, Standard Chartered Bank and National Bank of Kenya Limited. The inventory filed by the beneficiary/respondent incorporated other properties, assets and investments. She supports the mode of distribution provided by Charity Njoki who incorporated two other properties that is Abothuguchi/Mariene/1429 and Thika Scheme V Plot – L. r No. 7240/2 with Langata Development Company. The former is a subdivision of Abothuguchi/Mariene/ 868 and the latter is said to be non-existent at least according to Douglas Mwiti. [10] There is no agreement as to what comprises the estate of the deceased. I have already found that Plot No. 2890/83 Timau Market was sold to Lawrence Marangu by the deceased and the administrators shall complete the transaction, if not yet competed. Therefore i order the said plot shall go to Lawrence Marangu and the Certificate of Confirmation of Grant shall so indicate. Ultimately, from the record, I find that the following assets constitute the estate property:LAND PARCELS 1. Abothuguchi/Mariene/ 868 2. Rugusu Market No. 2 ‘A’ 3. Plot No. 22 ‘A’ Kangeta Market 4. Plot No. 3 Kangeta Market 5. Plot No. 3 ‘B’ Gatimbi Market 6. Abothuguchi/ L. Kiija/ 225 7. Abothuguchi/Mariene/372 8. Land Reference Kiamuri ‘A’ 9. Plot No. 456 Isiolo 10. Thika Scheme V Plot – L. r No. 7240/2 with Langata Development Company BANK ACCOUNTS 1. Standard Chartered Bank A/C No. 0120012400001 2. Kenya Commercial Bank A/C No. 181175209
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3. HFCK Savings A/C No. 1/11889 4. National Bank of Kenya Limited A/C No. 74049674 PERSONAL INVESTMENTS 1. Mukiria Farmers Co-op Society Limited Share Certificate No. 992 2. Kenya Commercial Bank Shares A/C No. 085909 3. Government Treasury Bill Issue No. 1057 4. Nkando Farmers’ Co-operative Society Limited Membership No. 2983 5. KNFU Membership No. 38 -00251618-10 6. Kshs. 14,400/- with Ntoringwi Scheme 7. Meru Central Farmers’ Co-operative Society Ltd Member No. 1016 Distribution [11] The estate identified above is to be distributed. The deceased having been polygamous the guiding provision of the law is Section 40 of the Law of Succession Act which stipulates that “(1) 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.” [12] The section embodies fairness, equity and equality for each child and the surviving wife such that the estate is divided equally amongst all the beneficiaries. Therefore, reference to house means all children together with the surviving widow. [13] The administrators are not in agreement on how the estate ought to be divided, except some few areas of convergence. Guided by the law and the general circumstances of this case, the estate shall be distributed as follows: LAND PARCELS 11. Plot No. 2890/83 Timau Market Lawrence Marangu 12. Abothuguchi/Mariene/ 868 Silas Muthuri M’Likanya - 3 acres 2nd House - 2 acres
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13. Rugusu Market No. 2 ‘A’ To be shared equally amongst the three houses 14. Plot No. 22 ‘A’ Kangeta Market To the shared to the 2nd House 15. Plot No. 3 Kangeta Market To be shared to the 3rd House 16. Plot No. 3 ‘B’ Gatimbi Market To be shared to the 1st House 17. Abothuguchi/ L. Kiija/ 225 To be shared equally amongst the three houses 18. Abothuguchi/Mariene/372 To be shared equally amongst the three houses 19. Land Reference Kiamuri ‘A’ To be shared equally amongst the three houses 20. Plot No. 456 Isiolo To be shared equally amongst the three houses. 21. Thika Scheme V Plot – L. r No. 7240/2 with Langata Development Company To be shared equally amongst the three houses BANK ACCOUNTS The proceeds in all the accounts listed below shall be shared equally amongst all the beneficiaries:5. Standard Chartered Bank A/C No. 0120012400001 6. Kenya Commercial Bank A/C No. 181175209 7. HFCK Savings A/C No. 1/11889 8. National Bank of Kenya Limited A/C No. 74049674 PERSONAL INVESTMENTS All investments listed below to be realized and the proceeds thereof to be shared equally amongst all the beneficiaries: 8. Mukiria Farmers Co-op Society Limited Share Certificate No. 992
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9. Kenya Commercial Bank Shares A/C No. 085909 10. Government Treasury Bill Issue No. 1057 11. Nkando Farmers’ Co-operative Society Limited Membership No. 2983 12. KNFU Membership No. 38 -00251618-10 13. Kshs. 14,400/- with Ntoringwi Scheme 14. Meru Central Farmers’ Co-operative Society Ltd Member No. 1016 [14] The grant herein is confirmed in the above terms. No order as to costs. Dated, signed and delivered in open court at Meru this 27th February, 2019 ............................. F.M GIKONYO JUDGE In presence of Kurauka holding brief M/s Kiome for petitioner Interested party- present Kimaita for Interested party Kimaita for Kaumbi for Charity Igoki Judith Kananu present Otieno for Karuma for Douglas Mwiti, Cyrus Muthuri – present 3 administrators – present ........................... F.M GIKONYO JUDGE
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