Michael Mutinda Munuve & 2 Others v Duncan Kaleli Munuve & 2 Others

7. On 7 th November 2011 that application (Summons for Confirmation of Grant ) was dismissed for want of prosecution. 8. By an application dated 15 th October 2013 filed on 25 th October 2013 the administrators through Michael Mutinda Munuve sought to have the grant revoked 9. This application was settled on 30th May 2016 whereby the grant of 16th February 2016 was revoked and the 1st family was to be represented by Duncan Kaleli and the 2nd family by Michael Mutinda. The Affidavit of Protest dated 20th November 2011 was also disposed of, and each party was at liberty to file a summons for confirmation of grant and affidavit of protest. 10. The record shows further that Michael’s position was that their father had 2 wives - that the 1st wife was settled on Kathonzweni/Kwakavisi/673, and their mother on Kathonzweni/Kwakavisi/715, and that was the reason they had filed for succession only for Kathonzweni/Kwakavisi/715. 11. Duncan Kaleli Munuve filed an Affidavit of Protest to the summons for confirmation of grant on 30/11/2011 dated 28/11/2011 in which he stated that he was son of the 1st wife of the deceased while the petitioner was the son of the 2nd wife of his father one Sela Munuve (deceased) . That the Petitioner had decided to leave out all the children of the 1st - including the wife of his deceased brother one Mary Mwikali Mulako, and his brother – Mutende Munuve 12. He averred that the division of the estate would have to be in equal shares and in accordance with the 2 families. He averred that they were settled in the estate and should not be dismantled. 13. Pursuant to this fresh grant Michael Mutinda filed summons for confirmation of grant dated 13/9/2016. In the supporting affidavit he stated that the deceased was survived by: Duncan Kaleli Munuve -son Mary Mwikali – daughter in law Benson Mutende Munuveson Michael Mutinda Munuve-son Mweu Munuve -son Kyalo Munuve-son 14. He confirmed that the deceased had 2 wives Yula Munuve & Sela Munuve; – that he represents 2nd family, while Duncan represents 1st family. He proposed that the estate of deceased be distributed thus:2nd family - Kathonzweni/Kwakavisi/715 (7.21Ha) 1st Family - Kathonzweni/ Kwakavisi/673(4.0Ha) 15. On 22/9/2016 – Duncan filed an Affidavit of Protest stating that each of the properties of the deceased be distributed equally among the beneficiaries of the estate of the deceased. 16. Michael’s response was dated 10/10/2016 was filed on 13/10/2016. 17. He deponed this his mother Sela was married to the deceased and they lived at Kyanzasu in Machakos County – but she left and went to Makueni County and settled first on 673, leaving their father in Machakos. He later followed her to 673. That his mother, out of her farming industry – purchased 715. That both parents moved to 715, settled there establishing his mother’s matrimonial home - that both his mother, and late brother Alex Mutuku were buried there. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 2

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18. That his step mother, Yula Munuve, mother to Duncan was left at Kyanzasu, died and was buried there. That Duncan came to their home at 715 when he got married to Rose Mwikali and he and his wife were accommodated in the house of Michael’s late brother - 19. That 673 was allocated to the 1st wife i.e., Yula and Duncan and his wife were ordered out of Michael’s younger brother’s house on 715 . That that Duncan put up a house for his wife on 673 . 20. That when his (Michael’s) mother died - and soon after so, their father, the wife of Duncan demolished the house of the Michael’s younger brother, and moved into Michael’s mother’s Matrimonial house where they were living as at the date of the affidavit of protest. 21. That this matter was taken up with the clan, and Duncan was ordered out of the house by clan elders and ordered to move to his home at 673. 22. That when Duncan’s brother died in 2009, Duncan tried to bury him on 715 but the same was objected to in court– and the court upheld the objection. 23. That Duncan’s other wife has a house on 673. 24. That their mother’s homestead ought to be inherited by her last born Kyalo – but Duncan has occupied the same with his 1st wife. That Duncan and his family have never erected any structure on 715, other than occupying the house of Michael’s late brother, and Michael’s mother’s matrimonial home. 25. Duncan filed a further affidavit on 2/2/2017 where he denied all the averments by Michael. That the deceased had not distributed his estate but had given directions on how the land should be shared; that the deceased left him in the house, as the eldest son; that his 2nd wife has a house on no. 673, while he and his 1st wife live in the house the father left him; that Michael does not have any house at home and never goes home. 26. The matter was heard by way of viva voce evidence. 27. OW1 Cancun Kaleli Munuve testified that deceased was his father. That the petitioners were their step brothers. He relied on the Affidavit of Protest sworn on 22/9/2016. He testified that his father gave him the house he lived in when he was alive. On cross-examination he said he wanted the land shared equally. 28. He claimed that he lived with his father on 715 and his father bought No. 673. He confirmed that he did not have any documentary evidence that his father had bought the land, neither did he witness the land being bought. He said he had three wives – one living on 715, another on 673. He denied any awareness of court orders in relation to his late brother - and confirmed that his 2 brothers were buried on 673. He confirmed that the last born inherits the homestead – he said that his mother was buried at Kyanzasu Village in Machakos where she had a homestead. He said on cross-examination that he wanted them to have shares on each parcel of land. 29. OW3 Beatrice Mukulu told the court that Sammy (deceased) was her brother. On cross- examination she said she did not have any evidence to show that her brother bought the land. She said No. 673 was for the 1st wife, because the 2nd wife already had land. She testified than Duncan’s 2 nd wife was built a house on the land of the 2nd wife. On cross- exam she said that Michael called the clan after “We had already distributed the land “That Duncan already had his share given to him by their father. She said Michael was a trouble maker 30. The objectors closed their case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 3

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31. Pw1 Jones Kiio Muya testified that Serah was his sister and Michael was Serah’s son. That Serah was married in Mbooni – but in 1958, she came to him at Muvau Location and asked him to give her land – because she had a dispute with her husband – Munuve Sammy. He testified how she bought a piece of land near the river – She began farming that piece of land, then from those proceeds bought another piece of land far from the river - where she moved to and this was the current 715 - that she however died before title deeds were issued and that is why the land was not in her name. He said on crossexamination that the deceased had 2 wives 1st – Yula 2nd – Serah 32. Duncan is son of Yula . He said he did not know who was occupying the 2 parcels of land on how they were shared. PW2. Michael Mutinda relied on his affidavit sworn on 10/10/2017 and his written statement .His testimony is that there were 2 parcels of land 673 and 715 . That his mother bought 673 & from its harvest bought 715 – all the while Sammy Munuve was in Nairobi; – that when registration of land came – his mother was already deceased and the land was registered in Sammy Munuve’s name. That Duncan’s family settled on 673 – including Duncan’s 1st wife, that his 2 brothers are buried there. That one of Duncan’s wives lives in the house that belonged to their mother (Michael’s mother) on 715 .That their mother is buried on 715, while Duncan’s mother is buried in Machakos. He denied that their father gave the house on 715 to Duncan. On cross- examination he said that his mother bought no. 673 when she left their father. 33. That their father left Kyanzasu and came to 715 where their mother had settled and was living. He said their father died in 1994, but title deed was issued in 2006, when his father was already deceased. He said he filed this cause, without including the 1 st family because they just wanted No. 715 and not 673. He also denied hiding the 1st wife of his father – the said according to Kamba customary, the last child of Serah was supposed to inherit his mother’s homestead. On re-examination he said his mother moved to 673 in 1967. He said his step brother was occupying 673, 715 and the ancestral land in Machakos. PW3 was Francis Mutinda Kioko. He said he did not know the 1st wife of the deceased. He said Serah bought No. 673 from Mbithi Ngula where she constructed her home; then she bought another land – 715 from one Mbingilili . He said he was the one who constructed the houses for Serah her and her children on 715 while Sammy Munuve was in Nairobi. 34. On cross-examination he said he was just the fundi who constructed the house at 715. 35. The matter was part heard before the Hon Ong’udi J as she then was and Hon Dulu J. 36. Parties filed written submissions. 37. For the objector it is submitted vide submissions dated 26th March 2025 that 5 years after the death of their father, the estate was divided as follows:LR 673 – to Mutende Munuve, Musyoki Munuve & Kyalo Munuve LR 715 - to himself, Musyoka Munuve and Michael Munuve and Michael Mutinda Munuve. It is submitted that the petitioner acknowledges that the protester and his wife have been living on a portion of 715 since 1985 – the court is urged to take into account the places where beneficiaries have occupied before - and relies on Scholastica Ndululu Sura Vs Agnes Nthenya Sura [2019] eKLR where the court stated that “although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of the estate of a polygamous deceased person, the court has discretion to take into account https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 4

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factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate” 38. The petitioners through Mwanzia & Co. Advocates submissions dated 30/5/2025 - submit that upon a summary of the evidence the issues for determination are :1. How the estate of the deceased should be distributed 2. Who are the beneficiaries of the estate? 39. The court is urged to find that the evidence on record supports a distribution where the 1st house gets no 673, and the 2nd house no. 715. 40. That the objectors have not interacted with no. 715 except for Duncan’s wife who occupies the house of the mother of Michael. That a brother of Duncan was buried on 673 pursuant to court orders in Civil Suit No. 208/2009, the 3 rd Objector was also buried there and the mother of the 1st Objector was buried in Kyanzasu. 41. The petitioner relies on Estate of Ngamini Kirira (Deceased) [2016] eKLR and Re estate of Ruth Nyakarini Rukwaro [2016] eKLR for the proposition that a deceased person could divide his property before his death. 42. Regarding the beneficiaries, it is submitted that Leonard Musyoka Munuve passed on – but did not have spouse or children. That Benson Mutende Munuve also passed on and did not leave known dependents. That one Mary Mwikali was sneaked in by DW1 at submissions stage to mislead the court to distribute the estate to a non – existed person. Hence – in the 1st wife - there was Duncan Kaleli Munuve Leonard Musyoka Munuve (deceased) Benson Mutende Munuve (deceased) 2nd House Michael Mutinda Munuve Mweu Munuve Kyalo Munuve 43. It is submitted that the first house has one unit and the owner house has three units - and the estate should be distributed equally. The court is referred to Re estate of John Musambayi Katumanga (deceased) [2014] eKLR where the court held that the provisions of Section 35, 38, & 40 are couched in mandatory terms –that the property shall be distributed equally. The court is urged to distribute 673 to the objector and 715 to the petitioner and his brothers to share equally. 44. I have carefully considered the evidence on record as matter was part heard before other judges. 45. Section 71 of the Law of Succession Act states, that in cases of intestacy the letters of administration shall not be confirmed until the court is satisfied as to the respective identities of all person who are beneficially entitled to the estate, and their respective shares. 46. As to who are the beneficiaries – in this case - the deceased was a polygamous man who died intestate. He had two wives in his lifetime. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 5

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47. Section 40(1) of the Law of Succession Act provides how the estate will be distributed – His personal and house - hold effects and the residue of his net estate – shall be divided among the houses according to the number of children in each house adding the wife as an additional unit . This is subject to section 35 (where intestate has left one surviving spouse and children); and section 38 (where intestate has left a surviving child/children but no spouse) 48. In this case – the spouses did not survive the deceased. The 1st wife died - and was buried in Kyanzasu - the 2nd wife died and was buried in 715. Hence – only the children survive the deceased. 49. Who are these children? It is submitted that in the first house other than the 1 st objector, the others are deceased and have not left any known beneficiaries. 50. The evidence on record shows that the objector Duncan told the court that both his brothers were deceased. On cross-examination he said that Mary was Leonard’s wife. 51. It is noteworthy that by the time of his testimony in 23/10/2019 – his brothers were deceased. In his proposed mode of distribution, he did not mention that or indicate who was to step into their shoes – all this time as to whether or not there were dependents of the 2 brothers. He did not mention them in his Affidavit of Protest or his further affidavit – and it would appear that other than himself – there is no other brother/sister/dependent from the 1st house. 52. On the question of the distribution of the estate – the evidence on record shows that each family was settled on their respective parcel of land even before he deceased died. 53. To begin with there was the ancestral home - in Kyanzasu - where the mother of the objector is buried. The objector does not disclose what happened to that property yet his mother and the deceased (his father) lived there before his mother died and was buried there. 54. In addition there is evidence on record that the 2nd wife upon leaving the deceased and the 1st wife in Kyanzasu came to Kwakavisi and settled there – the evidence of her uncle, and that of the fundi who constructed the houses on 715 has not been controverted, neither the proceedings from the clan – the fact that the objector confirms that he came to Kwakavisi 1985 confirms the story told by the petitioner – that the objector found his mother there - and she pre-deceased their father – and his (objector’s wife) occupied their mother’s house after she died. 55. There is however no evidence to support his claim that his father gave him the house on 715 to belong to him. 56. It is noteworthy that it is one of his three wives who lives in that house - otherwise the rest of his family and the family of the 1st wife of his father (his mother) live on 673 and that is where members of the family of the 1st wife are buried. Even his aunt, who was his witness confirmed that 673 – was meant for the 1st wife. 57. The proceedings form the clan also indicate that the 1st family was to occupy the No. 673 and the objector was asked to leave 715 and go to his parcel of land on 673. 58. The evidence before me demonstrates that during the life of the deceased , there was clear demarcation of the properties as to who was living on which parcel of land, the 2nd family was to occupying 715that is where the mother lived until her death e and was buried there, and so was her son. 59. When the 1st family attempted to bury their brother Leonard on 715 – the matter went to court and the court agreed with the petitioners and restrained the objectors from burying their brother there. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 6

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60. The objector also conceded that according to Kamba customs the last-born child inherits the homestead - how then could he be living in the homestead of Serah Munuve yet her last born son Kyalo Munuve is still very much alive, while knowing that it ought to be occupied by the last born of Serah, the 2nd wife? That is a contradiction as the eldest of his father he should resolve in the interests of his youngest brother. 61. And in any event, why would he take over their homestead where their mother lived, died and was buried? He knows it is wrong and even the clan and the family told him so. 62. I note that the objector, wonders in his statement dated 2/2/2017 why the petitioner took so long to bring this claim? 63. That cannot be an issue to determine whether or not the petitioner and his siblings are entitled to their mother’s share of the estate. 64. The objector says he is the 1st born. If he was truly the head of the family installed by his father, then he would have ensured that the share of the children of his step mother was available always for his step brothers when they showed up. It sounds strange that he can question why his brother would come to claim his mother’s share of the estate. Why is it questionable to him, for the petitioner to seek his inheritance? 65. What is questionable is the objector’s action of installing his wife in the house of his step mother, in that home – as though the children of Serah would never come home. As I said herein above, the clan told him it was wrong and directed him to leave. For this court, that was the correct decision. 66. The objector has not produced any evidence to support what he calls the wishes of the deceased. 67. What should be the final orders? 68. Guided by section 42 of the Law of Succession Act – I am of the view that each house was properly settled on their respective parcel of land during the life time of the deceased and his 2nd wife, as his first had pre deceased both. 69. I find therefor that 1st house is entitled to - Kathonzweni/Kwakavisi 673 70. The 2nd house is entitled to Kathonzweni/Kwakavisi/715 71. The estate be and is hereby distributed as above. 72. Each house will determine how to share their portion 73. A certificate of confirmation of grant to issue in accordance with the above distribution. 74. Each party to bear its own costs. DATED, SIGNED AND DELIVERED ON THIS 20TH FEBRUARY 2026 MUMBUA T. MATHEKA JUDGE Court Assistant – Daniel Ms Mwanzia for administrators Ms Mutuku for Objector Judgment Succession Cause no.120 of 2017 Page 2 of 2 Signed by/for: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 7

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LADY JUSTICE MATHEKA, TERESIA MUMBUA MAKUENI HIGH COURT DATE: 2026-02-21 17:13:55 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4384/eng@2026-02-20 8

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