John Mbugua Kariuki & 1 other v Peter Kiiru Kariuki

acres L.R Kiambaa/Thimbigua/1549 Containing main homestead L.R Loitoktok/Emperon/1369 20 Acres John Mbugua Kariuki Beth Wambui Kariuki Margaret Wangui Kariuki John Mbugua Kariuki Paul Kihumba Kariuki L.R Ereri Company Limited Shares Peter Kariuki Abs olute Equa lly Lon gono t Lon gono t Kiiru Nan yuki Ann Wangui Kariuki Emily Marura Kinyanjui Eq ual ly Family Trust Distributed equally among all beneficiaries Nan yuki Nan yuki Plot No. 209/3271/23 Pangani John Mbugua Kariuki abso lute John Mbugua Kariuki abso lute Ann Wangui Kariuki abso lute Paul Kihumba Kariuki abso lute Ann Wangui Kariuki Ab sol ute Ann Wangui Kariuki abs olu te Bangalow 8 double rooms Plot No. 15 Njiku B. New Crystal diary Plot No. 32 Banana Plot No. 116 Ngei II Huruma 5 storey building at Safaricom mart Plot No. 162 Ngei II Huruma 5 storey building L.R 209/276 Kariobangi Light Industries 4 storey Kariobangi Light Industries (B) Peter Kariuki Kiiru Margaret Wangari Kariuki John Mbugua Kariuki Peter Kiiru Kariuki Emily Kinyanjui Ann Wangui Kariuki Beth Wambui Kariuki Paul Kihumba Kariuki Equa lly Marura Eq ual ly Eq ual ly Family Trust Beth Wambui Kariuki Margaret Kariuki Eq ual ly Wangari Eq ual ly

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Plot No. 6/Kiambaa/Muchatha shopping centre Ann Wangui Kariuki Abs olute Plot No. 100 Mai Mahiu Peter Kariuki Kiiru Abs olute L.R No. 74 Thika Municipality Paul Kihumba Kariuki Abs olute Paul Kihumba Kariuku Ab sol ute Plot No. 16 Njiru B Beth Wambui Kariuki Abs olute Family trust Ab sol ute Equa lly Emily Kinyanjui John Mbugua Kariuki Plot No. Kiambaa/Karuri/T578 Paul Kihumba Kariuki Beth Wambui Kariuki Plot No. Kiambaa/Karuri/T61 Margaret Wangari Kariuki Margaret WangariKariuki Plot No. 158 Lucky Summer Plot does not exist John Mbugua Kariuki Marura Equa lly Abs olute Plot No. Kiambaa/Muchatha/T.381/6 Peter Kariuki Kiiru Abs olute Plot No. Kiambaa/Muchatha/T.160 Emily Marura Kinyanjui Abs olute 48 Cows on Kiambaa/Thimbigua/357 68 cows L.R No Ab sol ute Beth Wambui Kariuki Margaret Kariuki Wangari Margaret Kariuki Wangari Beth Wambui Kariuki Peter Kariuki Ab sol ute Ann Wangui Kariuki Peter Kiiru Kariuki Eq ual ly Eq ual ly Ab sol ute Ab sol ute Kiiru John Mbugua Kariuki Paul Kihumba Kariuki In Equa l shar es 68 cows among the distributed sons of the deceased Eq ual ly Emily Marura Kinyanjui The Sheep(5) Cereals shop at Nyamakima Beth Wambui Kariuki Abs olute Beth Wambui Kariuki Ab sol ute Beth Wambui Kariuki Abs olute All beneficiaries of the estate Eq ual

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ly All beneficiaries of the estate Eq ual ly Equa lly All beneficiaries of the estate Eq ual ly Equa l Shar es All beneficiaries of the estate Eq ual ly Equa l Shar es All beneficiaries of the estate. Eq ual ly Equa lly Shar es All beneficiaries of the estate Eq ual ly L.R Ereri Company Limited Shares All beneficiaries of the estate Eq ual ly KBL 846L Ford Tractor Family Trust Money in National 010240000501200 Bank A/c Money in Standard chartered Bank of Kenya A/c No. 11520146366-010 Beth Wambui Kariuki All beneficiaries Beth Wambui Kariuki Shares in Kenya Commercial Bank 49,796 shares Margaret Wangari Kariuki Ann Wangui Kariuki Beth Wambui Kariuki Shares in National Bank of Kenya 3, 157 shares Margaret Wangari Kariuki Ann Wangui Kariuki Beth Wambui Kariuki Shares in Barclays Bank of Kenya 28,400 shares Margaret Wangari Kariuki Ann Wangui Kariuki Ann Wangui Kariuki KAZ 897T Toyota Van Emily Kinyanjui Ab sol ute Marura KAU 846H Toyota Van Peter Kiiru Kariuki KBS 325Q Mitsubishi Van John Mbugua Kariuki Eq ual ly Eq ual

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Paul Kihumba Kariuki ly Beth Wambui Kariuki KBJ 973T Toyota Double Cabin KAY 905Q Mitsubishi Lorry Margaret Kariuki Wangari Emily Kinyanjui Marura Peter KiiruKariuki John Mbugua Kariuki KVZ Isuzu Lorry Paul Kihumba Kariuki Eq ual ly Eq ual ly Eq ual ly 5. The matter proceeded by way of viva voce evidence. The protestor testified and called one witness in support of his proposal being the registered valuer from Seven Degrees North Limited. The 1 st administrator, Paul Kihumba Kariuki and a registered valuer from Upcountry Valuers testified in support of the administrators’ proposal. The report of upcountry appeared more reliable because they indicated dates of inspection of the properties. 6. In the distribution of an intestate estate, there are three factors for consideration, namely: the persons who have survived the deceased, the assets available for distribution and the manner in which the assets are to be distributed amongst the survivors. In the context of this cause, there is no dispute as to the persons who survived the deceased, and there is a general consensus on most assets available for distribution. The main area of conflict is how the estate ought to be distributed. 7. From the proposals put forth by the parties on the mode of distribution, it is important to assert that for as long as the beneficiaries of the deceased are not in agreement it is left to the court to apply the laid down law and principles to arrive at what the court would consider to be fair and just in the circumstances of the case. From the proposals put forth by the administrators, there is a general lack of consensus from all the parties. Consents obtained from John Mbugua, Beth Wambui and Paul Kahumbu. 8. Having carefully considered the pleadings, oral evidence and the submissions of the parties in this matter, the primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. Due to the size of the estate, I will analyse each property separately. Two valuers from Seven Degrees North Limited and Upcountry Valuers prepared and filed valuation reports on the estate of the deceased. These reports have been very useful in assisting the Court toget an actual picture of the assets of the estate of the deceased. 9. L.R Kiambaa/Thimbigua/357 is a property on which the three homesteads of the deceased Dancun Kariuki Kinyanjui, the late Samuel Kinyanjui and Paul Kihumba are located. The property also contains a cowshed, borehole, servant quarters and it fronts a river. The rest of the property is used for as farm land. Seven degrees north reported that this property is valued at Kshs. 140 million while upcountry valuers valued the property at Kshs. 104,250,000. 10. The administrators proposed that this property be distributed to all beneficiaries with each getting 1.104 acres while John Mbugua Kariuki was to receive 1.37 acres. The protestor on the other hand proposed that a family trust be created for all the beneficiaries to have a share of this property. Considering the various developments made by some of the beneficiaries on the property and the proposal by the administrators providing for distribution of this property to all beneficiaries, I am in agreement with the mode of distribution of L.R Kiambaa/Thibigua/357 as proposed by the administrators. 11. Kiambaa/Thimbigua/1549 was valued at 42 million by Seven Degrees North. They stated that the property consists of James Mbugua’s homestead, a cowshed, a biogas digester and agricultural land. In addition they measured the property at approximately 1.48 acres. Upcountry valuers valued the property at Kshs. 24,200,000 with an area of 1.5 acres. They confirmed the presence of John Mbugua’s homestead, servants quarters and several cowsheds for the family. 12. The administrators proposed that the property be distributed to John Mbugua absolutely while it was the protestor’s proposal that a trust be created for the benefit of the family. From the evidence, of the reports by the valuers, the biogas digester serves John Mbugua’s house, the servants’ quarters and the yoghurt factory that’s on a different parcel of land. Considering the presence of John Mbugua’s homestead situated on the property, the presence of the cowsheds for the family and the biogas digester, I hereby distribute this property to John Mbugua who shall retain his homestead and his cowshed while the remaining cowsheds and biogas digester to be jointly owned by all the other beneficiaries. 13. Plot No. 15 Njiku B houses the milk factory. Seven Degrees North reported that this property measures approximately 0.115 acres with a three storey milk factory building erected thereon. They valued the property at Kshs. 25 million. Upcountry valuers valued this property at 20 million. The administrators proposed that this property by distributed to John Mbugua. The protestor strongly opposed this proposal stating that the factory belonged to the estate having been constructed using estate funds. Further, that it was fed by biogas from the estate

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and was using milk from the estate. He asserted that the 1 st administrator who runs the factory had never paid rent nor had the estate benefited from proceeds from the factory. 14. John Mbugua disputed these allegations stating that only the building belonged to the estate while New Crystal Dairy was a different entity for which he is the proprietor. He produced a certificate of registration dated 18 th March, 2005 and averred that he bought the three machines which made the factory operational. He admitted that he has never paid rent to the estate for use of the building but asserted that all the other beneficiaries were also using estate property without paying any rent therefor. In his testimony, Paul Kihumba supported the 1 st administrator’s position on the ownership of the factory. 15. Having taken all this evidence into consideration, it is trite law that he who alleges must prove. The allegations that the factory belonged to the estate were not proven by the protestor. New Crystal dairy is a different entity from the estate owned and run by John Mbugua. There is no evidence that it is estate property available for distribution. However, the building where the factory is housed is estate property as such it should be distributed to beneficiaries of the estate. Consequently, I hereby distribute this property to all beneficiaries of the estate of the deceased equally. It is noted that James Mbugua Kariuki has not paid rent for the use of the building for the years he has used it but it was not disputed that the other beneficiaries are also in occupation of other properties of the estate. James Mbugua Kariuki shall therefore pay rent for the use of the building from the date of this ruling. 16. Plot No. 16 Njiku B is an undeveloped and unoccupied property next to New Crystal factory measuring approximately 0.05 acres. Seven degrees North and Upcountry Valuers both valued this property at Kshs. 2 million. The administrators’ proposed that this property be distributed to Beth Wambui Kariuki, whereas the protestor proposed that this property be put under a family trust for the benefit of all beneficiaries. I see no reason to change the proposal made by the administrators. I hereby distribute Plot No. 16 Njiku B absolutely to Beth Wambui Kariuki. 17. Kiambaa/Karuri/T.61 is unoccupied and vacant. Seven Degrees North reported that the property measures approximately 0.24 acres and is suitable for commercial developments. They valued the property at Kshs. 16 million. Upcountry valuers valued this property at 8 million. Both the administrators and the protestor were in agreement on the proposed mode of distribution of this property. I hereby affirm their proposal and distribute Karuri/Kiambaa/T.61 wholly to Beth Wambui Kariuki. 18. Kiambaa/Karuri/T.578 was also vacant property measuring approximately 0.24 acres. The valuation was Kshs. 24 million and Kshs. 12 million from Seven Degrees North and Upcountry Valuers respectively. The administrators’ proposed that this property be equally distributed between John Mbugua and Paul Kihumba. The protestor proposed that the property be distributed to Emily Marura. I hereby distribute Kiambaa/Karuri/T.578 equally between John Mbugua, Paul Kihumba and Emily Marura. 19. L.R Banana Township/32 contains a business block with three rental shops. Seven Degrees North valued that property at Kshs. 2 million while Upcountry Valuers explained that the property is approximately 0.0106 in acreage, has a single storey commercial building occupied by three tenants each paying a monthly rent of Kshs. 10,000 and valued it at Kshs. 3,500,000. There being consensus between the parties on the distribution of this property I hereby allocate L.R Banana Township/32 to Ann Wangui Kariuki absolutely. 20. Kiambaa/Muchatha/T.160 is vacant property valued at Kshs. 25 million and is approximately 0.25 acres. The administrators proposed that this property be wholly allocated to Emily Marura Kinyanjui while the protestor proposed that this property be distributed to himself. Considering previous allocations I hereby distribute Kiambaa/Muchatha/T.160 absolutely to Peter Kiiru Kariuki. 21. Kiambaa/Muchatha/T.381/6 is property in vacant possession measuring approximately 0.07 acres which Seven Degree North valued at Kshs. 12 million, whereas Upcountry Valuers placed a value of Kshs. 6 million on it. It was the administrators’ proposal that the property be distributed to Peter Kiiru Kariuki. The protestor proposed that this property be wholly distributed to Ann Wangui Kariuki. Taking into consideration allocations made to the other beneficiaries, I hereby distribute Kiambaa/Muchatha/T.381/6 to Ann Wangui Kariuki absolutely as proposed by the protester. 22. Plot No. 74 Thika Municipality is in vacant possession and was valued at Kshs. 20 million by Seven Degrees North who stated its acreage to be approximately 0.25 acres. Upcountry Valuers on the other hand valued it at Kshs. 6 million by and stated its acreage to be 0.1 acres. There being consensus between the administrators and the Protestor on the distribution of this property to Paul Kihumba Kariuki, I hereby distribute Plot No. 74 Thika Municipality wholly to Paul Kihumba Kariuki. 23. L.R 209/276 Kariobangi Light Industries contains a block of single rooms rented by tenants paying a monthly rent of Kshs. 3200 per month. Seven Degrees North valued the property at Kshs. 30 million and estimated that it raises an annual rent income of Kshs. 2,073,600. Upcountry valuers on their part valued the property at Kshs. 27 million. The Administrators proposed that the property be distributed equally between Beth Wambui and Margaret Wangari while the protestor proposed that this property be placed under a family trust and the rental income would be used for the maintenance of the family home and cemetery. I hereby adopt the proposal by the administrators on the distribution of L.R No. 209/276 Kariobangi Light Industries to Beth Wambui and Margaret Wangari. 24. The protestor in his proposal claimed that Plot No. 276B Kariobangi Light Industries belonged to the estate and should be distributed to the beneficiaries. The administrators claimed that this property belonged to Beth Wambui and had never been estate property. Form P & A 5 dated 2nd October, 1997 lists the full inventory of assets and liabilities of the deceased. Plot No. 276 B Kariobangi Light Industries was not listed as an asset of the estate of the deceased. Furthermore, the protestor has not produced any additional evidence to back his allegations to this effect. Therefore, this Court cannot proceed to distribute property not available for distribution. 25. Plot No. 162 Huruma Ngei II estate is a block of rental units measuring approximately 0.03 acres. Seven Degrees North and Upcountry valuers both valued this property at Kshs. 27 million and indicated that it had an annual rental income of 1.9 million. The administrators proposed that the property be allocated to Peter Kiiru and Ann Wangui, whereas the protestor proposed that this propery be allocated to Emily Marura and himself. It was the 1st administrator’s testimony that the protestor was already receiving rental income from this property.

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This was not disputed by the protestor. Having considered the evidence on record, I hereby distribute Plot No. 162 Huruma NgeI II equally between Peter Kiiru and Ann Wangui. 26. Plot No. 116 Huruma Ngei II measuring approximately 0.03 acres was valued at kshs. 22 million. The annual rental income is said to be Kshs. 1.7 million. The administrators proposed that this property be distributed to Paul Kahumba while the protestor proposed that this property be distributed to Paul Kahumba and John Mbugua. Having considered previous allocations on rental property I hereby distribute Plot No. 116 Huruma Ngei II equally between Paul Kahumba and Emily Marura. 27. L.R 209/327/23 Pangani are rental units raising an annual rental income of Kshs. 860,000. Seven Degrees North valued this property at Kshs. 85 million while Upcountry valuers valued the property at Kshs. 65 miillion. The protestor proposed that this property be allocated to Ann Wangui while the administrators proposed that the property be wholly allocated to John Mbugua. Considering previous allocations made, the value of this property and the rental income it brings in, I am in agreement with the administrator’s proposal and hereby distribute L.R 209/327/23 Pangani to John Mbugua absolutely. 28. Plot No. 100 Mai Mahiu measuring approximately 0.125 acres consists of a single commercial shop fronting the access road. Seven Degrees North reported that this property has a pending dispute with the County Government of Nakuru over title to the property. This was confirmed by both the 1st administrator and the protestor. The administrators proposed that the property be distributed to Peter Kiiru Kariuki while the protestor proposed distribution to John Mbugua. However, due to the pending dispute, I cannot make a determination on the distribution of this property. 29. Longonot/Kijabe Block 1/293-Ereri, Nanyuki/Marura Block 5/40- Ereri and Loitoktok/Emperon 1369 are three properties measuring approximately 50 acres, 80 acres and 20 acres respectively. All are in vacant possession. Having considered the size of these properties, each property will be equally distributed among all the beneficiaries of the estate of the deceased. 30. Plot No. 158 Lucky Summer is located in Nairobi County. However, Seven Degrees North reported that they were unable to locate the property for valuation and assessment. Upcountry valuers did not provide a report on this property. The 1 st administrator confirmed that he too could not locate the property. Considering the derth of evidence available, this Court is unable to make a determination on Plot No. 158 Lucky Summer whose existence is in doubt. 31. I am in agreement with the proposal of the administrators on the distribution of the cereals shop to Beth Wambui. All farm animals being cattle and sheep, the money in various bank accounts and the shares in various companies are distributed equally among all beneficiaries of the estate of the deceased. 32. The protestor alleged that the 1 st administrator purchased several motor vehicles using funds from the estate of the deceased. He proposed that these motor vehicles were therefore estate property available for distribution to the rightful beneficiaries. He alleged that the salary of Kshs. 60,000 was inadequate for him to amass as much wealth as he had. He contemplated that the only logical explanation was that he was enriching himself from the estate. No evidence was adduced that these motor vehicles were irregularly acquired using funds from the estate. The motor vehicles listed in the Protestor’s proposal are therefore not estate property available for distribution. 33. I note that this estate has not been distributed for the last 23 years and because of the acrimony between the two divides it is not possible for all the beneficiaries to hold the properties in trust as suggested by the Protestor. The disparities in the valuation reports filed hereto did not help matters. This is bearing in mind that Upcountry Valuers were the only ones who visited the site of the property as indicated in their reports. 34. In the premise therefore, I allow the application for confirmation of grant filed via summons dated 13 th July 2015, and order as follows: a) The Grant of letters of Administration Intestate made to John Mbugua Kariuki and Beth Wambui Kariuki on 10 th March, 2008 be and is hereby confirmed in the following terms; No PROPERTY DISTRIBUTION 1. L.R Kiambaa/Thimbigua Peter Kiiru Kariuki /357 Beth Wambui Kariuki John Mbugua Kariuki Paul Kihumba Kariuki SH A RE 1.1 04 acr es 1.1 04 acr es Margaret Wangari Kariuki Ann Wangui Kariuki Emily Marura Kinyanjui 1.3 76 acr es

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1.1 04 acr es 1.1 04 acr es 1.1 04 acr es 1.1 04 acr es Ho me ste ad L.R Kiambaa/Thimbigua/1549 John Mbugua Kariuki Ori gin al 2. Remaining cowsheds and biogas digester to be jointly owned by all beneficiaries. Co ws he d 3. L.R Loitoktok/Emperon/1369 All Beneficiaries Eq ual ly 4. L.R Ereri Company Limited Shares All Beneficiaries Eq ual ly John Mbugua Kariuki Ab sol ute All beneficiaries Eq ual ly Ann Wangui Kariuki Ab sol ute Plot No. 209/3271/23 5. Pangani Plot No. 15 Njiku B. 6. New Crystal diary 7. 8. 9. Plot No. 32 Banana Paul Kariuki Kahumba Emily Kinyanjui Marura Plot No. 116 Ngei II Huruma Plot No. 162 Ngei II Huruma Peter Kiiru Kariuki E q u a l l y E q

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10. 11. 12. 13. 14. 15. Ann Kariuki Wangari Beth Kariuki Wambui Margaret Kariuki Wangari L.R 209/276 Kariobangi Light Industries L.R No. 74 Thika Municipality Plot No. 16 Njiru B Plot No. Kiambaa/Karuri/T578 Plot No. Kiambaa/Karuri/T61 Plot No. Kiambaa/Muchatha/T.381/6 Paul Kariuki Kihumba Beth Kariuki Wambui John Kariuki Mbugua Paul Kariuki Kihumba Emily Kinyanjui Marura Beth Kariuki Ann Kariuki Wambui Wangui u a l l y E q u a l l y A b s o l u t e A b s o l u t e E q u a l l y A b s o l u t e A b s o l u t e 16. Plot No. Kiambaa/Muchatha/T.160 Peter Kiiru Kariuki A b s o l u t e 17. Cows and Sheep Peter Kiiru Kariuki E

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18. 19. 20. 21. 22. 23. Mbugua Paul Kariuki Kihumba Emily Kinyanjui Marura Beth Kariuki Wambui Beth Kariuki Cereals shop at Nyamakima Money in National Bank A/c 010240000501200 Money in Standard chartered 11520146366-010 John Kariuki Bank of Kenya A/c No. Shares in Kenya Commercial Bank 49,796 shares Shares in National Bank of Kenya 3, 157 shares Shares in Barclays Bank of Kenya 28,400 shares Wambui q u a l l y A b s o l u t e All beneficiaries of the estate E q u a l l y All beneficiaries of the estate E q u a l l y All beneficiaries of the estate E q u a l l y All beneficiaries of the estate E q u a l l y All beneficiaries of the estate E q u a l l y b) There shall be no orders as to costs. It is so ordered. DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 27TH DAY OF MAY, 2020.

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....................... L. A. ACHODE HIGH COURT JUDGE

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