In re Estate of Mbiyu Koinange (Deceased) [2015] KEHC 81 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 527 OF 1981

IN THE MATTER OF THE ESTATE OF MBIYU KOINANGE (DECEASED)

JUDGMENT

1. This matter relates to the estate of Mbiyu Koinange who died intestate on 3rd September 1981. Representation to his estate has been committed to various persons over the years, but the current administrators are David Njunu Koinange, David Waiganjo Koinange, Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu.

2. What is for determination is the Summons for Confirmation of Grant dated 20th February 2012. It is brought at the instance of two of the administrators, David Njunu Mbiyu Koinange and David Waiganjo Koinange. They swore separate affidavits on 20th February 2012, whose contents are similar.

3. In the affidavits they state the deceased was survived by five children, and the families of seven (7) children who are dead. The five surviving children are David Njunu M. Koinange, Paul Mbatia Koinange, George Kihara Koinange, David Waiganjo Koinange and Lennah Wanjiku Koinange. The children of the deceased who are themselves since dead include Mary Wambui Koinange, Elizabeth Waruinu Koinange, Isabella Wanjiku Koinange, Florence Wanjiku Koinange, Solomon Kihara Koinange and Godfrey Kanga Koinange. All the dead children, except for Godfrey Karuga Koinange and Isabella Wanjiku Koinange were survived by children and some cases spouses. The names of such surviving children and spouses of the dead children of the deceased are not clearly identified in the two affidavits but they appear in the paragraphs proposing distribution of the estate. These are Stella Loise Njeri Mbiyu, Barbara Wambui Koinange, Angela Wambui Kihara, Cedric Mbiyu Koinange, Stella Kibara, Stephen Mungai Kibara, among others.

4. Two other persons are mentioned as survivors of the deceased, that is to say Margaret Njeri and Eddah Wanjiru Wamuhu. These are the other two administrators of the estate. They are not applicants in the summons dated 20th February 2012. The applicants state in their supporting affidavits that Margaret Njeri divorced the late Mbiyu Koinange and married Charles Karuga Koinange, who is also deceased. They aver that she did not have any child with the deceased – Mbiyu Koinange. Eddah Wanjiru is said to have been an assistant to the deceased and cohabited with him briefly. She had no child with the deceased according to them. Before the deceased passed on, the said Eddah Wanjiru is said to have been married to a Harry Reginol with whom she got three (3) children – Silvia Wambui, Phiona Wahu and Benjamin.

5. The deceased is said to have died possessed of the following assets:-

(a) Muthera Farm – 4292 acres

(b) Ehothia farm – 640 acres

(c)Thimbigua – 96 acres

(d) Closeburn Estate (commercial plots) – 10 acres

(e) Closeburn Estate (farm) – 176 acres

(f) Ikinu farm – 11 acres

(g) Thimbigwa plot

(h) Banana Hill plot

(i) Gathanga – 2 plots

(j) Nakuru plots – 80/41, 80/40, 80/42

(k) Kanunga (Galhbert)

(i) Kiambaa Kawaida

(m) Shares in Koinange Investments

(n) Shares in Koira Ltd

(o) Shares in Kenyattu

(p) Shares in Limuru Dairy

(q) Shares in ICDC

(r) Shares in Elburgon Sawmill

(s) Shares in Mbo-I-Kamiti

(t) Shares in Gatatha Company Farmers Limited

(u) Shares in BAT

(v) Kiambaa Kibichuku

(w) Shares in Oceanview Hotel, Mombasa

(x) Shares in Oceanic Hotel, Mombasa

(y) Thirstine Plot – 267 acres

(z) Kileleshwa plot

(aa) Building block on Biashara Street

(bb) 14 blocks of go-downs in Mombasa

(cc) 4 second row beach plots

(dd) Waihuthia – 198 acres

6. From the affidavits of the applicants it would appear that they are clear on the availability of some of the assets, and in respect of those they have proposed distribution. They claim that some of the assets are not available for distribution for they were sold illegally, and fingers are pointed at Margaret Njeri and Eddah Wanjiru. It is proposed that the two administrators account for the assets that were allegedly sold illegally. The assets that are said to be available for distribution include Muthera Farm, Ehothia Farm, Thimbigua Farm, the commercial plots and farmland at Closeburn Estate, Ikinu farm, the plots at Thimbigwa, Banana Hill, Gathanga, Nakuru, Kanunga (Gahlbert) and Kiambaa Kawaida. The shares in Koinange Investments, Koira Ltd, Kenyattu, Limuru Dairy, ICDC, Elburgon Sawmills, Mbo-I-Kamiti, Gatatha and BAT are also said to be available for distribution, also is the Waihuthia Farm.

7. It is proposed that the said assets be distributed as follows:-

MUTHEA FARM (4292)

PlotSize (in acres) Beneficiaries

A 174 Road reserve, settlement and amenities

B 660 David Njunu Koinange

C 550 Paul Mbatia Koinange

D 700 George Kihara Koinange

E 500 Isaac Njunu Koinange

F 500 David Waiganjo Koinange

G 500 Lennah Wanjiku Koinange

H 250 Stella Loise Njeri Mbiyu

I 268 Barbara Wambui Koinange

J 250 Angela Wambui Kihara

EHOTHIA FARM (640 ACRES)

PlotSize (in acres) Beneficiaries

A 11 Road reserve and police station

B 20 Margaret Njeri

C 20 Eddah Wanjiru (as tokens from the

family goodwill)

D 100 David Njunu Koinange

E 90 Paul Mbatia

F 95 George Kihara K.

G 70 Isaac Njunu K.

H 75 David Waiganjo

I 64 Lennah Wanjiku K.

J 30 Stella Loise Njeri Mbiyu

K 35 Barbara Wambui Koinange

L 30 Angela Wambui Kihara

THIMBIGUA FARM (96 ACRES)

Plot Size (in acres) Beneficiaries

A 4 Road reserve

B - David Njunu Koinange surrenders his share

C 20 Paul Mbatia Koinange

D 10 George Kihara Koinange

E 10 Isaac Njunu Koinange

F 20 David Waiganjo K.

G 30 Lennah Wanjiku K.

H 2 Mbiyu Koinange Family Cemetery

COMMERCIAL PLOTS – CLOSEBURN ESTATE

Plot Size (in acres) Beneficiaries

A 1 David Njunu K.

B 1 Paul Mbatia K.

C 1 George Kihara K.

D 1 Cedric Mbiyu Koinange

E 1 David Waiganjo K.

F 1 Lennah Wanjiku K.

G 1 Stella Loise Njeri

H ½ Stephen Mungai Kibara

I ½ Stella Kibara

J 1 Barbara Wambui Koinange

K 1 Angela Wambui Kihara

CLOSEBURN ESTATE (176 ACRES)

Plot Size (in acres) Beneficiaries

A 30 Road reserve

B 12 Daniel Njunu K.

C 12 Paul Mbatia K.

D 12 George Kihara K.

E 25 Isaac Njunu K.

F 35 David Waiganjo K.

G 40 (withdrawn) Lennah Wanjiku K.

H 5 Barbara Wambui Koinange

I 5 Angela Wambui Kihara

WAIHUTHIA FARM (198 ACRES)

Plot Size (in acres) Beneficiaries

A 13 road reserve and settlement

B 30 David Njunu K.

C 30 Paul Mbatia K.

D 35 George Kihara K.

E 30 Isaac Njunu

F 28 David Waiganjo K.

G 22 Lennah Wanjiku K.

H 5 Barbara Wambui Koinange

I 5 Angela Wambui Kihara

Other propertiesBeneficiaries

Ikinu farm Paul Mbatia K. (6 acres)

Thimbigwa plot David Njuno Koinange

Banana Hill plot David Njuno Koinange

Gathanga plots (2) George Kihara Koinange

Nakuru plots (3) Lennah Wanjiku K. (81/41)

David Waiganjo K. (80/40)

David Njunu K. (80/42)

Kanunga (Galhbert) Paul Mbatia Koinange

Kiambaa Kawaida Paul Mbatia Koinange

Koinange Investments equal shares to all direct beneficiaries

Koinange Ltd equal shares to all direct beneficiaries

Kenyattu Paul Mbatia Koinange

Limuru Dairy George Kihara Koinange

ICDC David Waiganjo Koinange

and George Kihara Koinange

Elburgon Sawmill David Njunu Koinange

Mbo-I-Kamiti David Njunu Koinange

Gatatha Lennah Wanjiku Koinange

BAT Paul Mbatia Koinange

8. The properties that are said to have been sold illegally include Kiambaa Gichiku, Oceanview Hotel and Oceanic Hotel, 267 acres of land in Thirstine, a Kileleshwa plot, a building block on Biashara Street, 14 blocks of go-downs in Mombasa and four second row beach plots. It is proposed that Eddah Wanjiru should account for the Kiambaa Kibichuku property, while she and Margaret Njeri should be held to account for the two Mombasa hotels. It is equally suggested that the administrators should account for the building block on Biashara Street, the Mombasa go-downs and the four second row beach plots. It is not indicated who should account for the Thirstine land and the Kileleshwa plot. Attached to the application is a consent for the distribution of the assets as proposed by the two administrators. The consent is executed by David Njunu Koinange, Paul Mbatia Koinange, George Kihara Koinange, Isaac Njunu Koinange, David Waiganjo Koinange, Lennah Wanjiku Koinange, Stella Loise Njeri Mbiyu, Stephen Mungai Kihara and Angela Wambui Kihara. Although the names of Stella Kibara and Barbara Wambui Koinange appear on the consent form, the two did not sign the said consent.

9. The two administrators who were not party to the application dated 20th February 2012, that is to say Margaret Njeri Mbiyu and Eddah Wanjiru, swore and filed affidavits of protest to the said application. Margaret Njunu Mbiyu’s affidavit was sworn on 4th May 2012 and filed in court on 9th May 2012, while Eddah Wanjiru Mbiyu’s affidavit was sworn on 12th June 2013 and filed in court on the same date. In her affidavit, Margaret Njeri Mbiyu protests that the application dated 20th February 2012 is in abuse of court process as the court had on 19th November 2009 ordered the filing of an application or the partial confirmation of the grant as some of the assets of the estate were not available for distribution. She states that there is on record an application dated 3rd December 2009 for the partial confirmation of the grant, to which the deponent swore and filed an affidavit of protest and there is also an affidavit of protest on record by Lennah Catherine Koinange to that application. She has then gone on to give a historical background of the representation in the estate. She explains that in 1981, David Njunu Koinange obtained a temporary grant of letters of administration intestate, but he failed to consolidate the estate, following which other family members moved the court in 1993 for his removal as interim administrator. To resolve the application for removal the parties agreed by consent to have four (4) administrators each representing the four (4) houses of the deceased. David Njunu Koinange represented the first house, the late Isaac Njunu Koinange (later to be replaced by his mother Rith Damaris Wambui Mbiyu) represented the second house, Margaret Njeri Mbiyu represented the third house, while Eddah Wanjiku Mbiyu represented the fourth house (although the deponent states that she once was married to the deceased but was only his mistress). A temporary grant was accordingly issued on 22nd March 1993 in those terms. Ruth Damaris Mbiyu died sometime in 2010 and was replaced by her son, David Waiganjo Koinange, and a grant was made in those terms on 19th November 2009 and that of 22nd March 1993 was revoked. The deponent asserts that she was administrator of the estate of the deceased since 1993 and she was appointed as such in her capacity as widow of the deceased. She therefore strongly expresses disgust at the suggestion by the applicants that she was not a widow and therefore a stranger to the estate yet she had participated in every aspect in the administration of the estate. She states that she started cohabiting with the deceased on 8th August 1968. After that they married customarily where all the requisite Kikuyu customary rites of marriage were performed. They then underwent a statutory marriage ceremony on 20th March 1971. The couple was not blessed with issue. She adds that as at the time cohabitation commenced, the deceased’s first wife, Loise Njeri, had died, while the second wife, Ruth Damaris had been divorced by the deceased. She avers that her cohabitation with deceased since 1968 was at Ehothia farm. They lived in the main house and she managed the farm as well as the deceased’s other businesses. She continued to farm on Ehothia farm after the deceased passed on for this was the property that he had settled her on. As the farm is very extensive she invited the deceased’s sons from the first house, David Njunu and George Kihara, to assist her farm on Ehothia farm. She claims to farm about 250 acres, and to be still in possession of the matrimonial home on the farm, although the same is uninhabitable as it was neglected during the tenure of the sole administratorship of David Njunu Koinange.

10. She denies having ever been divorced by the deceased, nor having been married thereafter to the deceased’s brother, Charles Karuga Koinange or any other person for that matter. She dismisses these allegations as blatant lies meant to scandalize her. She states that no evidence has been furnished of the alleged marriage between her and the deceased’s brother, adding that the said Charles Karuga Koinange only assisted her care for her two adopted children. She further avers that when the latter died she was not listed in the succession cause relating to his estate. She further states that if she were married to the former she would not have received any money raised from the partial distribution of the estate following the sale of portions of Closeburn Estate. She pleads estoppel arising from her having benefited from the partial distribution. She disputes the beneficiaries identified by the applicant in their application of 20th February 2012. She states the correct list of the rightful successors of the deceased to be as follows:-

House No. 1 – of Loise Njeri Mbiyu (Deceased)

David Njunu Mbiyu Koinange – son

Paul Mbatia Koinange – son

George Kihara Koinange – son

Stella Njeri – granddaughter of the deceased from his dead daughter, Mary Wambui Mbiyu.

Stella Kihara and Stephen Mungai Kibara – grandchildren of the deceased from his dead daughter, Elizabeth Waruinu.

House No. 2 – of Rith Damaris Mbiyu (deceased)

David Waiganjo Koinange – son

Lennah Wanjiku Koinange – daughter

Joyce Njeri Njunu Koinange – daughter in law of the deceased and widow of the dead son of the deceased, Isaac Njunu Koinange

Susan Kihara – daughter-in-law of the deceased and widow of the deceased son of the dead son of the deceased called Solomon Kihara Mbiyu.

Barbara Wambui Koinange – grand-daughter of the deceased and daughter of the dead daughter of the deceased called Florence Wanjiku Mbiyu.

House No. 3 of Margaret Njeri Mbiyu

Margaret Njeri Mbiyu – widow

No children with the deceased

House No. 4 of Eddah Wanjiru Mbiyu

Eddah Wanjiru Mbiyu – status not indicated. No children with the deceased.

11. She states that the son of the deceased named Geoffrey Karuga Koinange died without leaving spouse or issue, and therefore he was not a survivor of the deceased and is not entitled to a share in the estate. She protests that Solomon Kihara Koinange died leaving behind a widow called Susan Kihara, who should have been listed as a beneficiary, for she had participated in the partial distribution. She explains that the children of the deceased’s daughter called Elizabeth Waruinu ought to be listed as survivors of the deceased. She however asserts that Angela Wambui Kihara is a stranger to the estate and should not therefore participate in the distribution of the estate.

12. She proposes distribution of the estate as follows:-

ASSET SHARE OF 1ST HOUSE SHARE OF 2ND HOUSE SHARE OF 3RD HOUSE SHARE OF 4TH HOUSE

(a) LR NO. 22 Closeburn Estate (178 acres) 49 acres 49 acres 40 acres 40 acres

(b) LR No. 151/3 Ihothia Farm (640 acres) 200 acres 200 acres 240 acres Nil

Waehothia Farm (198 acres) Nil Nil Nil 198 acres

(d) Thimbigua/Waguthu/1677 (98 acres) 35 acres 23 acres 20 acres 20 acres

(e) LR No. 216 Ikinu Farm (16 acres) 4 acres 4 acres 4 acres 4 acres

(f) LR No. 1232/13 Githunguri (16 acres and Petrol Station) Nil 16 acres Nil Nil

(g) Nakuru Block 8/40 (0. 5605 Ha) All Nil Nil Nil

(h) Nakuru Block 8/41 (1. 5883 Ha) Nil All Nil Nil

(i) Nakuru Block 8/42 (0. 5588 Ha) Nil Nil ½ share ½ share

(j) Kiambaa Kawaida (plot) Nil Nil All Nil

(k) Koira Ltd (948, 480 shares) ¼ share ¼ share ¼ share ¼ share

(l) Dagoretti/Karandini/44-1 (Plot) Nil All Nil Nil

(m) LR No. 209/8868 Lunga Lunga, Industrial Area, Nairobi (to be sold) ¼ share ¼ share ¼ share ¼ share

(n) Kanunga Farmers Co. (2 plots in Kiambu Town) ½ share ½ share Nil Nil

(o) Mbo-I-Kamiti (shares) ¼ share ¼ share ¼ share ¼ share

(p) Gatatha Farmers Ltd (shares) ¼ share ¼ share ¼ share ¼ share

(q) BAT Ltd (shares) ¼ share ¼ share ¼ share ¼ share

(r) Kenyattu (shares) ¼ share ¼ share ¼ share ¼ share

(s) Oceanic Hotel (1000 shares) ¼ share ¼ share ¼ share ¼ share

(t) Koinange Investments Development Company Ltd (shares) ¼ share ¼ share ¼ share ¼ share

(u) Oceanview Beach Hotel (11000 shares) ¼ share ¼ share ¼ share ¼ share

(v) Danson Macharia Sawmills Co. Ltd (Shares) ¼ share ¼ share ¼ share ¼ share

(w) Limuru Dairy Ltd (shares) ¼ share ¼ share ¼ share ¼ share

(x) ICDC (shares) ¼ share ¼ share ¼ share ¼ share

13. She rationalizes her proposals as follows:-

(a) That LR No. 151/3 Ehothia Farm was her matrimonial home, where she spent most of her best years, her matrimonial house stands on the property and she had planted many trees on 250 acres of the property;

(b) That Eddah Wanjiru has for many years been farming LR Nos. 150/16, 3688/1 and 3688/4 Wehothia farm;

(c) That LR No. 22/2 Closeburn Estate was acquired after she was married and she played a role in its running during the deceased’s lifetime and no family member resided on it;

(d) That Eddah Wanjiru, though not legally married to the deceased, had participated in running some properties and businesses and should therefore get a share in Closeburn Estate;

(e) That Kiambaa/Thimbigwa/819 is ancestral land, David Njunu and Paul Mbatia farm the land, the deceased had laid a foundation for a house on the land, four members of the second house are buried there and David Waiganjo has started constructing a home on the land.

(f) That LR No. 1232/13 Githunguri is occupied by the second house, who should therefore get a smaller share of Kiambaa/Thimbigua/819;

(g) That the deceased had told her that his estranged second wife was to be buried at LR No. 1232/13 Githunguri, but this was ignored by the second house;

(h) That Dagoretti/Karandini/L4-1 is in possession of the second house;

(i) That the Kiambaa Kawaida plot should be given to her in her capacity as widow of the deceased;

(j) That the shares in the companies be shared equally amongst all the houses for the deponent and Eddah Wanjiru had participated in the running of the deceased’s affairs and businesses; and

(k) LR No. 8669/3 Muthera farm is still subject to litigation here it is not available for distribution but once it becomes available for distribution she claims an equal right to it;

14. The deponent has attached a number of documents to her affidavit to buttress her case. There is a certificate of marriage serial number 5311 attesting to a marriage celebrated between the deponent and the deceased on 20th March 1971 at the District Commissioner’s at Kiambu. There are also the affidavits of protest sworn on 20th December 2009 by Lennah Wanjiru Koinange and on 28th December 2010 by Margaret Njeri Mbiyu, in reply to the summons for partial confirmation of grant dated 3rd December 2009. There is also the affidavit of assets sworn on 22nd October 2009 by Lennah Catherine Koinange setting out the survivors of the deceased and of the assets that make up his estate. There is too the order of Githinji J. of 22nd March 1993 appointing administrators. There is also a statement of accounts in respect of the sale of 291 acres of Closeburn Estate, showing the distribution of the proceeds of sale. There is also copy of the order made on 28th May 2010 by Nambuye J. authorizing the sale of 100 acres out of Closeburn Estate; which among other issues identified the survivors of the deceased who were supposed to benefit from the said sale. There is also a certificate of confirmation of grant arising from the order of 28th May 2010 then there is the memorandum dated 4th December 2001 on agreement of the family of certain aspects of the estate signed by members of the family of the deceased including the deponent and Eddah Wanjiru Mbiyu. The application dated 26th October 2009 is attached to demonstrate that David Waiganjo Mbiyu stated on oath on 26th October 2009 that the deceased had four (4) wives. Then there are minutes of a family meeting held on 8th October 2009 where Margaret Njeri Mbiyu and Eddah Wanjiru are listed being the family members in attendance.

15. In her affidavit of 12th June 2010, Eddah Wanjiru Mbiyu states that she had instructed her advocates to withdraw her application dated 3rd December 2009 to pave way for the disposal of the application dated 20th February 2012. She also confirms that the current administrators were appointed on 19th November 2009.

16. She identifies the persons who survived the deceased and who are therefore entitled to inherit his estate as follows:-

FIRST HOUSE

David Njunu Mbiyu

Paul Mbatia Mbiyu

George Kihara Mbiyu

Mary Wambui Mbiyu (deceased)

Elizabeth Waruinu (deceased)

Isabella Wanjiku Mbiyu (deceased)

SECOND HOUSE

Rith Damaris Wambui Mbiyu (deceased)

Isaac Njunu Mbiyu (deceased)

Kihara Mbiyu (deceased)

Karuga Mbiyu (deceased)

Florence Wanjiku Mbiyu (deceased)

David Waiganjo Mbiyu

Lennah Wanjiku Mbiyu

THIRD HOUSE

Margaret Njeri Mbiyu (widow)

Moses Njunu Mbiyu

Lydia Wambui Mbiyu

FOURTH HOUSE

Eddah Wanjiru Mbiyu (widow)

Sylvia Wambui Mbiyu

Fiona Wahu Mbiyu

Benjamin Christopher Njunu Mbiyu

Marion Wangui Mbiyu

17. She identifies the grandchildren of the deceased’s children who have since died, in particular she recognizes Stella Njeri and Barbara Wambui Koinange. She recognizes too as survivors the two widows of the dead sons of the deceased, that is to say Joyce Njeri Njunu (widow of Isaac Njunu Mbiyu) and her children and Susan Kihara (widow of Kihara Mbiyu) and her one child. She asserts that she was married to the deceased and denies that she was a mere assistant. She too denies that she was at that time married to Harry Reginol. She explains that she and the deceased were living together as man and wife at their matrimonial home. They so lived until the deceased fell sick upon coming home from Nakuru and she rushed him to hospital. On the charge that she had illegally sold the property known as Kiambaa Gichiku, the original home at Kiambaa, she explains that the said property was never part of the estate of the deceased. The said land formerly belonged to the father of the deceased and when he died it was ordered in HCCC No. 66 of 1984 that the land be divided equally among the six houses of the father of the deceased, Senior Chief Koinange. Each house got six acres each with a small piece being excised and set aside for a family cemetery. The deceased’s mother had two sons – the deceased and the late Charles Karuga Koinange, her share was shared equally between these two sons, each taking three (3) acres. The clan gave the three acres due to the deceased to the deponent in her capacity as his widow and the three acres were therefore directly transferred for Senior Chief Koinange’s title to her name. On the 11000 shares in Oceanview Hotel, she explains that deceased was a shareholder and director of the holding company. In that capacity he named her as next of kin in the event of death. When the deceased passed on, the management of the company called a meeting where the next of kin forms naming her as nominee of his shares were produced. The administrators of the estate of the deceased were present at that meeting – that is to say Isaac Njunu, David Njunu and Margaret Njeri Mbiyu. The deceased’s brother, Charles Karuga Koinange, and the Managing Director of the Company, Mr. Kassim Lakha, were also present. Everyone said that they had no objection to the said shares being transferred to her. She asserts that all the 11000 shares are still in her name. Regarding the Oceanic Hotel, Mombasa, she states that the deceased held 1000 shares in the company that owned the hotel. The said shares should have been given to her but it never happened as the other shareholders illegally sold the hotel without her knowledge. She sued them for an account. She explains that apart from the 1000 shares, the 11000 shares in the company which owns the Oceanview Beach hotel entitled her to shareholding in the company holding the Oceanic Hotel since the former company held shares in the latter company. The matter is still in court. She says that as a minority shareholder she could not sell the Oceanic Hotel. With respect to the Thirstine Farm, also identified as Thirlestane Estate and Rima Kiambaa. She explains that the deceased bought the same and used the title to access a loan from the Co-operative Bank. She says that she does not know what happened thereafter, but the situation on the ground is that it is the family of the deceased’s brother, Charles Karuga Koinange, especially that of his son Dr. Wilfred Koinange Karuga, is in possession of the property. She states that she does not know the circumstances under which it came to be under the control of Dr. Koinange’s family. On the alleged sale of the Kileleshwa property, she states that she is unaware that the deceased owed such a property. She states that the building block on Biashara Street, the Mombasa go-downs on Mombasa/Block 1165, 252 and 330 and the second row beach flats on Mombasa Municipality Subdivision No. 1885 (Original Number 76 Rev./880) were all sold pursuant to court orders sanctioning disposal of the said assets. They were disposed of with the knowledge of the applicants, who received their share of the proceeds of sale. On the Ikinu property, she asserts that it was given to her by the deceased after her marriage to cultivate, and she has been in possession of it since. She asserts that Lennah Catherine Koinange was not a child of the deceased, for she was born after the deceased had separated from her mother, he did not educate her nor recognize her as his daughter. There was even a court order in a children’s matter, where the deceased was required to educate his second wife’s five (5) children, excluding Lennah. She states that most of the assets that make up the estate of the deceased have been ascertained, some are available for distribution while the rest have been sold. She lists the ones available for distribution as including:-

KIAMBU COUNTY

LR No. 151/3 – Ehothia farm

LR Nos. 3688/1, 3688/4, 150/6 – Wahothia farm

LR No. 8669/3 – Thimbigua farm

Githunguri property

LR No. 216 – Ikinu

Karuri Town property

Gathanga Centre – Kiambaa – 2 plots

- Kiambaa Kawaida – 1 plot

- Kanunga farmers – 2 plots

NAIROBI COUNTY

LR No. 209/9099 – City Centre plot

Lunga Lunga plot

Dagoretti/Karandini/44-1

Closeburn Estate

NAKURU COUNTY

Block 40

Block 41

Block 42

LR No. 8869/3

Koira Limited – 2/3 of the total shareholding

Mbo-I-Kamiti – not indicated

Kenyattu – not indicated

ICDC – not indicated

Oceanview Beach Hotel Ltd – 11500

BAT

Oceanic Hotel Ltd – 1000 shares

Nyahururu farm – 25 acres

18. She states that as a widow of the deceased she is entitled to equal share of the estate, pointing out that wherever property was sold a court orders the proceeds were shared out to among other persons herself. She gives examples of the sales of the property along Biashara Street, the Mombasa go-downs, the four (4) second row beach flats and the 291 acres out of Closeburn Estate. She also receives dividends in respect of the Koira Ltd shares.

19. She proposes distribution of the estate as follows-

Kiambu County properties

LR No. 151/3 Ehothia farm – currently occupied by Margaret Njeri, should be divided into three portions and given to the first three houses at ratios of 220, 220 and 200.

L.R No. 3688/1, 3688/4, 100/6 – occupied by Eddah Wanjiru – should be given to her exclusively.

LR No. 8669/3 – It is ancestral land, should be divided amongst the four (4) houses, with the second house getting the portion where they have buried their relatives.

Githunguri property within Githunguri town – had been given to Isaac Njunu by the deceased, the same should be transferred to his family.

LR No. 216, Ikinu – Eddah Wanjiru has been utilizing it, it should be given to her.

Karuri Town plot – to be sold and proceeds shared equally.

The five plots within the Gathanga Centre – no proposals.

NAIROBI COUNTY

LR No. 209/9099, City Centre plot – the shares held by the deceased in the company owing the property to be shared equally by the family.

Lunga Lunga plot – to be sold and the proceeds shared equally,

Dagoretti/Karandini – was sold by the second house without direction of the court

Closeburn Estate – the remaining 178 acres to be shared equally.

NAKURU COUNTY

Block 40

Block 41

Block 42 - to be sold and the proceeds shared equally.

LR No. 8869/3, Muthera farm, Mau Narok – to be subdivided and shared equally.

Koira Ltd – property to be sold and portion due to estate to be distributed equally.

Mbo-I-Kamiti – the shares have already been transferred.

BAT – shares to be sold and shared equally

Kenyattu – not indicated

ICDC – shares to be sold and the proceeds to be shared equally.

Oceanic Hotel Ltd – not indicated

Limuru Dairy Group – not indicated

Nyahururu farm – to be sold and the proceeds shared equally.

20. The deponent finally urges the court to address the matter of intermeddling of the estate by the beneficiaries and to give directions on matters relating to assets which are still tied up in litigation between same administrators and beneficiaries of the estate on the one hand and third parties who claim to have purchased them on the other hand.

21. She has attached to her affidavit several documents to support her arguments. There is a copy of the limited grant of letters of administration ad colligenda bona made on 13th April 1984 to David Njunu, Isaac Njunu, Margaret Njeri and Wanjiru Koinange. There is also copy of the full grant of letters of administration intestate made on 19th November 2009 to David Njunu Mbiyu, David Waiganjo Koinange, Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu. There is a copy of the title deed for Kiambaa/Waguthu/2324 dated 29th October 2007 indicating that she is the registered proprietor thereof. There is also correspondence relating to the Thirlestane Estate, comprised of letters of written in the 1970’s, on the purchase of the said property by the deceased. There are documents too on the suit between her and the Oceanview Beach Hotel Ltd and others. There is a share certificate dated 20th July 1989 on the 11000 shares owned by the deponent in the Oceanview Beach Hotel Ltd. The order made on 9th February 1995 by Githinji J. authorizing the sale of the Mombasa go-downs sand the four second row flats is also exhibited. It is followed by copy of another order of Githinji J. of 9th June 1995 authorizing payment of stated sums of money, ostensibly being the proceeds of sale, to various persons named in the order. There is a bundle of documents too on the sale of the 291 acres out of Closeburn Estate. There are too copies of various documents relating dividend for the year 2009 in respect of Koira Ltd. The order of 22nd March 1993 appointing administrators is also exhibited. There is also exhibited the sale agreement relating to the Closeburn property. The order of Koome J. of 28th January 2005 is also on record.

22. When the matter was placed before me in early 2013, I froze the filing of fresh and hearing of all pending applications pending the hearing and determination of the application dated 20th February 2012. The parties were directed to file their replies by way of affidavits to the said application, their witness statements and bundles of the documents they proposed to rely on as exhibits. The matter was fixed for trial on 19th June 2013, to be heard thereafter on a daily basis until final disposal. It was agreed by consent that order of presenting evidence was that the administrators would testify first, followed by beneficiaries and finally by the third parties. The order of presenting evidence for the administrators was to be that the applicants were to go first, followed by the other two administrators.

23. Trial commenced on 19th June 2013, with David Njunu Koinange taking the witness stand. He told the court that the Kiambaa Gichiku farm was ancestral land which originally belonged to his paternal grandmother Mariamu, wife of the late Senior Chief Koinange. The property was not subject to succession after the death of his grandfather and father, instead some people invaded it after their deaths. On Margaret Njeri Mbiyu, he testified that he could not recall when he saw her for the first time. He took the position that she might have been living with his father, but asserted that he did not know of the cohabitation. When shown documents on the record indicating her attendance at what was described in the documents as family meetings, he replied that she attended the meetings as an administrator and not as a beneficiary or family member, stating that the classification as a member of the third house of the deceased was for convenience sake to get things moving. On the receipts she got from disposal of some of the assets during partial distribution, he insisted that she received the same for her contribution to the administration of the estate. He did not object to the payments being made for he cared more for the administration of the estate rather than for the money. On the allocation of 20 acres to her in the application dated 20th February 2012, it was said that the same was out of generosity, and especially in recognition of her role as administrator of the estate. He stated that he was not aware who was recognized as the lawful widow of the deceased at the time of his burial and he did not know who the President and the Vice-President went to condole as widow of the deceased. He could not recall attending a meeting during his father lifetime, attended also by Eddah Wanjiru. He recalled attending George Kihara’s wedding, the deceased was at the wedding, but he did not know who represented their mother at the wedding. He said that Eddah Wanjiru might have been living at Waihothia Farm when his father died. It was she who took the deceased to hospital. He stated that he did not know how Eddah Wanjiru related to his father. He stated that the deceased had only two families and he was proposing distribution to the two families. On the issue of the four families, he stated the houses refer to the houses or families of each administrator. Eddah Wanjiru is said to sign the sale agreements and family agreements as a beneficiary and not as a widow of the deceased. On Koira Ltd he explained that the distribution was not equal. The directors of the company are the four administrators. In his view the Kiambaa Gichiku property was sold illegally by Eddah Wanjiru. He was also of the view that Eddah Wanjiru and Margaret Njeri ought to account for the disposal of the Mombasa assets, as well as for Thirstine and Kileleshwa plots. Regarding Thirstine, he stated that the title document used to be kept at the deceased’s house, but after he died it could not be traced. He appeared to imply that as Eddah Wanjiru happened to be at the scene with the decesaed when he fell ill then she should be called to account as to what might have happened to the property. He said that the sale of the Mombasa assets and the Biashara Street property appeared to be fair on the surface yet it was unjust. He asserted that her father had occupied Ehothia farm and that at some point Margaret Njeri occupied the farm together with some other people. She never at any time managed the farm. She was not in occupation of the farm as at the date of the hearing, but the persons in occupation were the witness and his brother, George Kihara. He stated that Margaret Njeri was divorced by his father, and that they never remarried. Mr. Njunu Koinange confirmed that the deceased had allotted the Githunguri farm to the family of the late Isaac Njunu. He had also been allotted to him a house along the Dennis Pritt Road and another in Closeburn Estate (2 acres). The late Isaac Njunu was said to have been living at the Closeburn Estate before he died. The witness was not sure of the acreage remaining after sale of part of Closeburn Estate, but he was sure that, the second house was staying at Closeburn Estate and occupied 79 acres that he had not distributed. Regarding the Karuri Community Chapel, he testified that the late Isaac Njunu and Lennah Koinange sold property to them but reported to the family. He confirmed that Isaac Njunu and Lennah Koinange had no capacity to sell the property to the Karuri Community Chapel as they were not administrators. They brought the matter of the intestate by the Karuri Community Chapel in their land to the administrators, and the four (4) administrators entered into a sale agreement with the said Karuri Community Chapel. On the Caledonia property, he testified that the same was given as a gift to Isaac Njunu by their late father, although he was unable to explain how the property was acquired. He conceded that he was not present when the same was gifted to Isaac Njunu, but when the deceased died the witness passed the property to the late Isaac Njunu to fulfill the deceased’s wishes. He stated that Stella Wanjiku and Steve Mungai were the children of his late sister, Elizabeth Waruinu, who had been married to a John Kibara of Kabete. He stated that as members of extended family the children should get a share of the estate. He conceded that they did not share in the distribution of the proceeds of initial sales of estate property, but they did receive each Kshs. 10,000,000. 00 from the subsequent sales. The witness in his application of 20th February 2012 proposed to give each of the two children of Elizabeth Waruinu ½ acre out of the Closeburn Estate plots. He stated that the family of Elizabeth had been given some property by the deceased during his lifetime; the property was at Kambui, Kiambu. He stated that Barbara Koinange was the only child of Wanjiku Mbiyu and therefore she was entitled to take her mother’s share of the estate. He conceded that the shares allotted to her in the application, in Muthera farm and Ehothia farm, were fairly small, but explained that Barbara Koinange was a grandchild of the deceased and whatever she got was equivalent to what the other grandchildren of the deceased were getting. He asserted that Barbara Koinange was not entitled to a share in the estate equal to that of the children of the deceased. On Angela Wambui Kihara, he stated that she was his niece and therefore a beneficiary of the estate who should be entitled to a share in the estate of the deceased. He confirmed that he was a director, with Ms. Eddah Wanjiru Mbiyu, of both Koira Ltd and Koinange Investment and Development Ltd (KIDL). He described the sale of the 291 acres out of Closeburn Estate as a shoddy job. He confirmed signing the sale agreement, but stated that he had his reservations, and that he signed the agreement “in a wrong way.” On Muthera farm, he testified that the same formed part of the estate of the deceased, although it had been invaded by Maasais. He stated that he was unaware of a company called Impulse Developers. On Eddah Wanjiru, he stated that she was cohabiting with the deceased at the time of his father’s death and that it was she who took him to hospital. He said that he did not know that she married someone else thereafter. The witness stated that his father used to farm on the Muthera Farm property, and after his death the family confirmed to use the farm, with him as administrator allowing members of the family to use it. The family was still in occupation of the land as at the time he testified, but he stated that the land had been invaded by Maasais, who had even sued claiming the property. He stated that there was also a suit on the property by George Kihara, who was at one time seriously injured in an attack on the farm by the Maasai when he went there to effect service. He further testified that the farm has been sold and were transferred to the name of the purchase, but added that the family was not paid for it. He averred that the children of the deceased were opposed to the sale and have even gone to court over it. He stated that Waweru Gatonye & Co. Advocates was involved in the sale and a deposit of the sale price was made to them. The witness stated that the title document to Muthera farm was with Waweru Gatonye & Co., Advocates or someone else. He confirmed that the title deed was actually being held by the firm of Messrs. J. M. Njage & Co., Advocates. He explained that the bank that was financing the sale on behalf of the purchasers collapsed before the balance of the purchase price was paid, hence frustrating the sale. He stated that he did not know who was registered as owner of the property, and that it was never in the name of his father although he owned it. He further stated that the farm was sold under Eddah Wanjiru although not by her. He said he was not necessarily one of the persons who sold the property. When he was shown a copy of the sale agreement, he admitted that he did sign the agreement of sale, but he differed with his co-administrators thereafter. He stated that he did not know who was buying the property; neither did he know the purchase price. He pleaded that he did not have an advocate in the transaction, for Waweru Gatonye & Co. Advocates had been instructed by Eddah Wanjiru, in her capacity as administrator. When he was shown copy of a cheque dated 19th October 2005 of Kshs. 21,480,000. 00, he confirmed that a deposit of the purchase price as indeed made to Waweru Gatonye & Co. Advocates. He stated that he was unaware of the order made by Koome J. on 26th October 2005 authorizing the sale of Muthera farm, saying that he saw it for the first time in the statement of Esther Gitau. He did not apply to have it set aside as that was the time when he had chosen to refrain from the transaction. When shown copy of the deed of assignment, he conceded that his name was on the deed and that he signed it, but “with bad eyes.” When shown a letter from Messrs. Waweru Gatonye & Co., Advocates, he confirmed that the balance of the purchase price was Kshs. 193,000,000. 00 but the same was not paid as the financing bank had collapsed. He stated that the undertaking sought by Mr. Gatonye in the letter was sought unfairly, adding that he was unaware whether the undertaking was ever given by the bank. He stated that the money was never received by the estate and he did not know why the transaction did not go through. He confirmed that his sibling – George Kihara Mbiyu, Lennah Wanjiku Koinange and the late Isaac Njuno Koinange applied for the setting aside of the order of Koome J. of 26th October 2005 for the sale of the farm. He was not party to the bid to stop the sale, although he was sympathetic to it. He stated that he told the three that he had refrained from the sale and that their bid was helping his position. He said he did not hear of the order of Rawal J. of 24th May 2006 and had heard that the transaction failed because the bank failed, but he did not know exactly why the transaction failed and when the bank went under. When shown a letter from Waweru Gatonye & Co., Advocates dated 8th September 2006, he stated that he was unaware that Impulse Developers offered an alternative undertaking, saying that the said firm of advocates were not his lawyers. When shown the court papers in respect of HCCC No. 678 of 2006, he confirmed that the estate had been sued jointly with others by Impulse Developers, but stated that he did not remember the law firm which had filed the counterclaim on behalf of the estate nor was he aware of the status of the suit. When asked why he did not list Muthera farm in the application of 20th February 2012 as one of the assets illegally sold, he said that although it had more problems with those other assets they were not comparable. He concluded that he had never seen the title deed for Muthera farm and that he was not aware whether it was in the name of the deceased. He stated that he had not received any money from the sale of Muthera farm and that he had not signed a transfer document on the farm. He stated further that he had not gone to the Nakuru Land Control Board to consent to the transfer of the farm. He added that he had been unable to go back to the farm due to insecurity, particularly after one of his brothers was attacked there. He stated that he had never seen the title on the farm, but asserted that his father had paid 75% of the purchase price for the farm. He stated that he did not know whether Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu were his father’s wives, but asserted that Eddah Wanjiru’s children – Sylvia Wambui, Fiona Wahu and Benjamin Christopher Mbiyu – were not children of Mbiyu Koinange. He confirmed having been sole administrator of the estate between 1981 and 1993 and that in 1993 Githinji J. joined Margaret Njeri, Eddah Wanjiru and Ruth Damaris Wambui as co-administrators. He said he welcomed the appointment of Margaret Njeri and Eddah Wanjiru as court appointed administrators. On why he did not complete administration of the estate within the six (6) months as ordered in 1993, he stated that he was unable to complete administration as the period was too short and problems arose as some people began to intermeddle with the estate and to introduce other persons.

24. The second applicant, David Waiganjo Koinange, began his testimony on 21st June 2013. On the legitimate survivors and beneficiaries of the deceased, he stated that the deceased had only two wives – Loise Njeri and Damaris Wambui – and the legitimate heirs to the deceased are their twelve (12) children. He stated that the dead children of the deceased were represented by either their children or spouses. Wambui Koinange was survived by her daughter Loise Koinange, while Elizabeth Waruinu was survived by her two children – Stella Kibara and Steve Kibara, Isaac Njunu was survived by his wife and five children, while Solomon was survived by his wife Susan and daughter, Angela Wambui Kihara. He stated that Cedric Mbiyu Koinange was a son of the late Isaac Njunu. He said that Margaret Njeri and Eddah Wanjiru were administrators of the estate of the deceased, but not widows of the deceased. When he was referred to his affidavit sworn on 26th October 2009, where he identified the two as widows of the deceased he stated that at the time he thought they were but later the facts became cleaner – Margaret Njeri had been married but she left and married his uncle, while Eddah Wanjiru was never married to the deceased. He said he got to learn that Margaret Njeri had gotten married to Charles Karuga Koinange after she left the deceased. He testified that he could not quite remember when he met her for the first time but he could recollect that she took him and his siblings to Mombasa at some point. She used to live in Mombasa and, he was living there after he first saw her. He saw her at the deceased’s funeral where she hitched a lift in his mother’s car. She never lived at Ehothia farm before the deceased’s lifetime, as only the workers were at the farm at the time of the deceased’s death. She was moved into Ehothia Farm by Charles Karuga Koinange. He stated that although his grandmother, Mariamu lived and died at Ehothia farm, Margaret Njeri did not take care of her. He said he did not know whether she had a relationship with the deceased, but he asserted that she came from the Ministry to take care of a project, otherwise he was not aware of any marriage. He stated that he saw the certificate related to their alleged marriage for the first time in court. After she moved into Ehothia farm after the deceased’s death, he took no action as he was just a youth and he had left it to his seniors. He asserted that she married Charles Karuga Koinange after the deceased’s death as there was a big issue and a divorce cause. His uncle, Charles Karuga even called them and informed them officially of the marriage in accordance with Kikuyu customs. He explained that his mother in some court papers described her as a co-wife probably because she was married to his uncle. He conceded that she received payments following disposal and distribution of some assets, but this she did on account of the services she and Eddah Wanjiru offered to the estate. He explained that he authorized a payment to them after he became administrator and after the disposal of part of the Closeburn Estate in 2009. He authorized that they be paid a token of appreciation for their services as administrators, but not as widows of the deceased. He stated that the amounts paid to the two were higher than those given to the children, he complained to his elder brothers and even to the Judge handling the matter then, but he was told that administrators need not be beneficiaries. When he was referred to the order of Githinji J. of 9th June 1995, which authorized payment of money to the administrators as remuneration for their services and other sums of money to the four (4) houses as maintenance, he said that he was not party to the said order, but his brothers had complained about it. On Ehothia Farm, he explained that Ehothia was the deceased’s nickname, and the farm was named so in his honour. It had farm houses, and after the deceased passed on, it was leased out by George Kihara, David Njuno and Margaret Njeri; but he could not tell the extent of the farm leased out by Margaret Njeri nor how his two brothers came to be involved with the farm. He stated that he and David Njuno, as administrators, did not want to award Margaret Njeri and Eddah Wanjiru the twenty (20) acres proposed in the application dated 20th February 2012, they only included the proposal on pressure from Lennah Wanjiku Koinange, to record them for their services, otherwise he would not like the two provided for there was no justification for their inclusion. He emphasized that Margaret Njeri had married Charles Karuga and later divorce him, stating that even if she had been a wife of his deceased father, she could not come back to his estate after she married Charles Karuga Koinange. On Closeburn Estate, he explained that the farm was originally 640 acres when the deceased bought it as a coffee plantation – with coffee, Napier grass, coffee factory and flowers. The deceased continued to ran it as a coffee plantation. Five farm houses stood on it, but no one in the family principally lived on the farm. The witness and his family moved into the farm, according to him, just about the time the deceased died. Part of the farm has since been sold – 291 acres to Enclair, 102 acres to Centum and 3 acres to the Karuri Community Church – leaving about 176 acres or so. He conceded that he had leased out portions of the Closeburn Estate property, following family agreement. He said there are about 15 buildings standing on the property and his tenants were about 10 to 15. When shown an order made on 28th March 2012 restraining any form of subdivision, leasing, selling or development of permanent structures on estate property – including Closeburn Runda – the witness pleaded that he was unaware of the order and that he got to see it for the first time on that day when he was confronted with, adding that the said tenancies were entered into before 28th March 2012. When shown a tenancy agreement that he entered into on 12th October 2012 with Royal Guiders Ltd, the witness conceded that he indeed entered into the agreement, but countered that he did not defy the order of 28th March 2012 for he was unaware of it. He denied having allowed intruders to get into the more strategic part of the property, stating that the corner is not the most strategic. He said that there was an understanding between him and his tenants that in the event of distribution of the estate he would transfer them to the portion that would be allocated to him, adding that they are not protected tenants and they can be asked by the court to move. On the distribution of Closeburn Estate stated that the second house was given bigger shares in the proposed distribution for they reside on it, while the other house was given smaller shares for they reside elsewhere where they have been allocated a bigger share. He stated that the distribution was based on family agreement. He conceded that they had considered Stella and Steve Kibara, but Lennah Wanjiku persuaded them to. On Muthera Farm, he explained the complications besetting the farm – the problems with leasing and the invasion by the Maasai. He averred that he was not an administrator when the farm was sold and he did not consent to its sale. Although the application dated 20th February 2012 proposes distribution of the same, he stated that the same was not available for distribution for it was still subject to court proceedings. He said that the disputed distribution was uneven, as between children and grandchildren, for grandchildren should get a lesser share compared with the children of the deceased. He explained that the alleged sale of the property as fraudulent as the family was not consulted over the sale. He asserted that Margaret Njeri and Eddah Wanjiru ought to account for certain properties. On the Kileleshwa property, he said he did not know where the same is located and he did not have documents on it. He had only heard about it from his siblings. On Thirstine, he said the farm was bought by his father jointly with his brothers and formed a Cooperative in order to get a loan. When he died the cooperative was dissolved and the property sold. He identified the members of the cooperative as Paul Mbatia, Charles Karuga Koinange, Dr. Koinange, among others. Margaret Njeri Mbiyu was not a member of cooperative. He was of the view that members of the cooperative ought to be called to account. He singled out Margaret Njeri Mbiyu and Eddah Wanjiru as among those persons who ought to account, as they were administrators at the time of the sale of the said farm. He alleged that they did sign the sale agreement, but he was not too sure whether other two administrators – David Njunu and Ruth Damaris Mbiyu were party to the sale agreement. On the Oceanic Hotel and the Ocean View Hotel, his view was that Margaret Njeri must have acted together with Eddah Wanjiru to dispose of the two assets and they should therefore account for it. On the Dagoretti plot, he stated that the same was not registered in the name of the deceased, but there was a letter of allocation in his favour. Someone from the local authority alerted him that the property was under threat of sale to settle outstanding rates. He moved in and sold it for Kshs. 3,000,000. 00. He paid of the outstanding rates and retained a balance of Kshs. 600,000. 00. He did not share the money with the family. He informed the family about it, but they were not happy. That happened some fifteen (15) years ago. He did not agree with the distribution proposed by Margaret Njeri Mbiyu, one on the ground that he did not recognize her and Eddah Wanjiru as widows of the deceased. When his attention was drawn to on order made on 28th May 2010 by Nambuye J. where the court referred to Eddah Wanjiru and Margaret Njeri as widows, the witnesses stated that he was not happy with the order, and he had instructed his advocates to appeal against the order, he was not sure whether his advocates acted on the instructions. When he was shown a document purportedly signed by family members including Margaret Njeri and Eddah Wanjiru, he said that they did not sign the document as widows, but as administrators. He said that Eddah Wanjiru and Margaret Njeri came from the Ministry, and one of them was typing the deceased’s manuscript. He asserted that the two were not wives of the deceased, for the deceased had only two wives at the time of his death. He said that at the time the deceased used to live at Waihuthia farm, with the workers, and the witness and others used to visit him there. He stated that he knew Eddah Wanjiru as an administrator, who was drawing a salary of Kshs. 300,000. 00 per month. When shown an affidavit that he had sworn earlier where he stated that the deceased had four (4) wives he said that he was misinformed at the time of swearing the affidavit, and that he had since come to know better. On Kiambaa/Gichiku farm, he stated that he had never seen the title for the property, but asserted that the same was sold by Eddah Wanjiru. The property was formally owned by their grandfather, Senior Chief Koinange, the portion due to their grandmother ought to have been given to the deceased and for that reason Eddah Wanjiru ought to account for it. On the issue of the household of the deceased being comprised of four houses, the witness said that the issue was composed by Platt J. he did not appeal the order as he was not an administrator at the time. On Koira Ltd he conceded that he was a director of the company, whose name is drawn from Koinange and Rana, the initial shareholders. He confirmed that the dividends from Koira Ltd were shared equally amongst the four houses. On the sharing of the proceeds of sale of the Closeburn Estate property, he stated that Eddah Wanjiru and Margaret Njeri were paid, not in their capacity as widows, but as administrators. Regarding Thirstine Estate, he stated that he did not have the documents on the sale of the said property. He conceded that he did not have any documents on the Kileleshwa plot and the Oceanic Hotel. The witness identified the assets available for distribution as Closeburn Estate, Thimbigua farm, Waihotha Estate, Ehothia farm, Lunga Lunga plot, Ikinu farm, Banana Hill plot, Gathanga plot, Nakuru plots, Kanunga plot (Galhbert), shares in Koinange Investment and Development Ltd, shares in Koira Ltd., shares in Kenyattu, shares in Limuru Dairy, shares in ICDC, shares in the Elburgon Sawmills, shares at Mbo-I-Kamiti, shares in Gatatha Farmers and BAT. He stated that after sale of a portion of Closeburn Estate to Centum a part of the purchase price, being Kshs. 160,000,000. 00 was not distributed and available for that purpose. He stated that the money was being held in an account held jointly in the names of some of the advocates. He identified six (6) assets as having issues. These were Muthera farm, Kiambaa Gichiku, Oceanview Hotel, Oceanic Hotel, Thirstine farm and Kileleshwa property. He explained that after sales of portions of the Closeburn Estate, 170 or so acres were still available for distribution. He conceded having leased out parts of the Closeburn Estate and the Thimbigua farm. He said that other family members had leased out other assets. Paul Mbatia Koinange was said to have had leased out a portion of Thimbigua and so had Barbara Wambui leased a portion of Closeburn Estate. David Njunu, George Kihara, Margaret Njeri and Eddah Wangui were said to have had leased out portions of Ehothia and Waihothia farms. Susan Kihara was said to have leased out a portion of Closeburn Estate. The Ikinu farm was said to have had been leased to Eddah Wanjiru, David Njunu was said to be cultivating on the Banana Hill plot, while the Gatatha and Nakuru plots were said to be empty. He stated his readiness to account for the leases that he has signed on any of the estate assets. He said that the family of the late Isaac Njuno had leased out any property, instead they were undertaking a project within Closeburn Estate, where the widow, Joyce Njuno, occupies five (5) acres. The witness went to great lengths to explain the troubles besetting Muthera Farm, particularly on the management of the farm. He stated that portions of the farm have been leased out, stating that he was ready to account for the income from the leases. He said that the family had agreed on a scheme for the distribution of the farm. He said he have agreed on it, except for two. When shown the title to the Muthera farm, the witness confirmed that the same was never registered in favour of the deceased on the estate. The entries showed that it was initially in the name of the Class family, before it moved to the Settlement Fund Trustees (SFT) in 1977. The last entry was a transfer to Impulse Developers Ltd. He stated that while the property was under SFT registration, it was threatened with sale, and SFT had informed the family of the same, whereupon Lennah Wanjiku Koinange sold a property to raise money to settle with SFT. The reason given for the action by SFT was that SFT knew that the property had been allotted to the deceased, who had taken a loan from a government agency on the property. It transpired that he died before he had fully repaid the loan. The family or estate was unable to pay the debt for some time until Lennah Wanjiku sold her property and paid off the entire amount. The property as to be transferred to the name of the deceased or the estate thereafter. She was said to have paid some Kshs. 5,000,000. 00 or thereabout. She testified that that was done with the approval of the family, including the administrators. It would appear that that did not please all the administrators, for Eddah Wanjiru and Margaret Njeri said to have gone to SFT to complain. The witness stated that Lennah Wanjiku had not been reimbursed as at the time the testimony. On the sale of the property to Impulse Developers Ltd, the witness expressed surprise that three administrators were able to sell the property where the property was not even in the deceased’s name. He testified that the transaction was handled by Waweru Gatonye & Co. Advocates, who received a deposit of Kshs. 21,000,000. 00 on behalf of the administrators. The advocates were said to have given an undertaking that the buyers would settle the balance. He stated that the property had already been transferred to the name of the purchaser, although the balance of the purchase price had not been paid. On the status of Lennah Wanjiku Koinange as a daughter of the deceased, the witness asserted that she was a child of the deceased, saying that the issue of her not being a child of the deceased was being raised belatedly as all along she had participated in family meetings and nobody had raised issue as to her paternity. In the court order of Nambuye J. of 25th May 2010, Lennah Wanjiku Koinange was listed among the undisputed children of the deceased in the second house. He also testified on the relocation of Lennah Wanjiku from one section of Closeburn Estate to another section. The order was by Nambuye J. she was to move to some fifteen (15) acres by the dam bordering Runda town and the Banana Hill road. She was to be paid for the relocation, but that had not been done as at the date of the testimony. He stated that Stella and Steve Kibara were the children of his sister, Elizabeth Waruinu. He conceded that both were entitled to a share in the estate. He explained that they had allotted them only one asset because their father was still al vie, and when he married their sister, their father gave them a farm as a gift. He confirmed that Nambuye J. in an order of 28th May 2010 recognized Stella and Steve Kibara as beneficiaries and awarded them a sum of Kshs. 10,000,000. 00 each as partial distribution. He said that that was a favour. He stated that Barbara Wambui was the only child of his sister, Florence Wanjiku. She had four children of her own, and she lived in rented house at Parklands Nairobi. She had allotted five (5) acres at the Closeburn Estate, but she had not been allotted anything out of the Thimbigua property. It was explained that that was because there was an issue of her having sold a portion of Thimbigua to a company known as Tangulizi Ventures Ltd. He denied being party to the transaction. He stated that he was aware of two applications by the company and the order of 26th July 2011 by Maraga J. directing that Barbara Wambui’s share in Kiambaa/Thimbigwa/819 be excised and transferred to Tangulizi Ventures Ltd. In the view of the witness, the Thimbigua issue was settled by the order of 26th July 2011, although there was still a criminal case, being Kiambu CMCCR. Case No. 468 of 2011, pending against Barbara Wambui. When shown an affidavit sworn by Barbara Wambui on 26th October 2010 she said he was aware of the transaction, the witness still denied being to the transaction. Regarding the sale agreement attached to the affidavit allegedly bearing his signature as one of the sellers of the property, he said the signature looked like his, but it was not his. He took the position that the entire Thimbigua property was available for distribution as Tangulizi Ventures Ltd were not on the ground. Susan Kihara was not allocated a share of Thimbigua Estate, but was given property elsewhere. He noted that Susan Kihara wanted to get a portion of Thimbigua as her husband was buried there, and the witness undertook to give her his share there. Barbara was excluded from Thimbigua also because she had property elsewhere, apart from the estate, that is at Malindi and in the South Coast. Barbara was allotted only 5 acres of Closeburn Estate because she did not live or have a house there, yet all the other members of the second house had residences there – that was to say the mother, Joyce Njunu and Susan Kihara. It was also stated that Barbara was married and live with her husband. The witness denied being involved in the sale, insisting that he was not aware of it. He explained that nobody in the family lived in the property, instead the same was being leased out for crop-growing. The family members leasing out the property were identified as Paul Mbatia, Barbara Wambui and the witness himself. He said that at the time of the alleged sale he was away in Mombasa, and if there was any subdivision of the property then the people who knew about it were Paul Mbatia and Barbara Wambui. He asserted that Barbara Wambui never told him about the sale, stating that there was no way she could sell the property without a court order and the involvement of administrators. He stated that he did not get anything out of the transaction. He conceded to have received some amount of money from Barbara Wambui, but said that the said money was a loan from her and not part of the proceeds of sale. He repeated that in the confirmation application they had not allotted share of Thimbigua farm, neither were they giving anything to Tangulizi Ventures Ltd. He stated that he got to see the court order for the first time in court. He was of the view that if the court had ordered that Tangulizi Ventures Ltd be catered for out of the confirmation process then that should be so. He also proposed that Barbara Wambui could also be ordered to refund the purchase price.He stated that he was not aware that his mother had filed documents describing Margaret Njeri and Eddah Wanjiru as widows. His father had been living at Waihothia Farm before he died. He lived there with workers and a sister of the deceased who has since died. The witness was then living at Closeburn Estate where he grew up. His father was taken to hospital by her driver. On Dagoretti/Karandini the witness testified that the deceased had been given an allotment letter thereon. Administrators had not paid rates for a long time and the council threatened to sell the same to settle the outstanding rates. At the time witness asked the prospective buyers to pay the rates to give him the difference in value. The administrators knew the property was to be sold but did nothing. He stated that the property belonged to his father, but said he would not account for the money received as he did not sell the property, he only benefited from it. He stated that the Muthera farm was sold by only three administrators – David Njunu, Margaret Njeri and Eddah Wanjiru. The deposit of 10% was paid to Eddah Wanjiru’s advocates. He said that Margaret Wanjiru later realized that the buyer was a company associated with Mr. Kabogo and had become uncomfortable with the transaction. He was however ready to go along with whatever the family decided. He stated that Impulse Developers Ltd have not been granted access to the property. He explained that the issue with that transaction was that the administrators sold the property fraudulently without first consulting the family.

25. The next person on the witness stand was Margaret Njeri Mbiyu. She began to testify on 18th July 2013. It was her case that the beneficiaries always wanted her removed as administrator, even though they had been sharing the proceeds of sale of any property allowed by the court. She told the court that she lived at Mombasa, but her matrimonial home was at Ehothia farm. On Eddah Wanjiru Mbiyu, she testified that she had known her for over twenty years, although she could not recall where she just met her, but suggested that that could have been at the burial of the deceased in 1981. She stated that Eddah Wanjiru was claiming to be a wife of the deceased, but she could not confirm what she was to the deceased although the two were staying together. She stated that the two might have started staying together in 1977-1978. She could not say for sure for she, Margaret, was living in Mombasa after she separated from the deceased. She was to have come into the life of the deceased after the witness and the deceased separated. When shown her affidavit of protest sworn before Ombuna Ongeri, Advocates, she confirmed the signature on the affidavit as hers. She read the portion of the affidavit where she had stated that Eddah Wanjiru Mbiyu had not been married to the deceased, either with stature, common law or customary law, but stated that she had no objection to Eddah Wanjiru being deceased’s wife as she had been benefitting from the partial distribution of the estate and had been staying with the deceased. The witness continued to assert that she was a widow of the deceased and it was on that basis that she was appointed administrator and paid during the partial distribution of the estate. When shown the statement of George Kihara Koinange, where he had stated that he had protested to the distribution to her and Eddah Wanjiru and signed certain documents under pressure, she stated that she and Eddah Wanjiru had not taken advantage of the children or they were all adults, and in any event it was the court which decided that they be paid. She stated that although the children of the deceased attended the court at all times, the court decided to deal with the administrators as they were persons authorized to deal with the estate. She asserted that she had evidence that she had been married to the deceased. The court decided what each of the widows was to be paid and also what the children were to be paid. The family would also sit and make decisions on the distribution. She testified also on the appointment of Isaac Njunu Mbiyu and George Kihara Mbiyu as agents of the estate with respect to managing certain assets. She said that they failed in their duties and began to mismanage the estate and intermeddle with it. She mentioned the other intermeddlers as Lennah Wanjiku, Barbara Wambui, Eddah Wanjiru, George Kihara and David Njunu. She said that although they did not sell estate property, they tried to misappropriate the estate. She testified that the administrators were unable to apply for the distribution of the estate earlier because some of the assets were not available to the administrators, some were in under dispute, while others were heavily in debt. The family wanted the full distribution of the estate, and were opposed to partial distribution. She conceded that a partial confirmation application had been filed by A. M. Wahome & Co, Advocates, on behalf of Eddah Wanjiru & Co. Advocates, but the same was subsequently withdrawn, leaving the application dated 20th February 2012 as the sole application for confirmation of the estate. She indicated that she did not agree with the mode of distribution proposed in application. Going back to the matter of Eddah Wanjiru. She met her for the first time at the funeral of the deceased and had not seen her before then. She was not introduced to her, but was informed by her friends that she was the fourth wife of the deceased. She realized that she was a wife when they began to gather the estate, and she had worked with her since then in that understanding. When shown her affidavit of protest sworn on 4th May 2013 where she had stated that Eddah Wanjiru was never married to the deceased but was his mistress, she said that for as long as the deceased lived together with Eddah, the latter could be called his wife. She added that she had no objection to her being considered as a widow of the deceased. When shown her witness statement where she had said that Eddah Wanjiru could not have been married to the deceased as he was still married to her under statute, the witness said that Eddah Wanjiru could still be regarded as a wife on account of her having lived with the deceased for a long time. She stated that the two started living together when she was still married to the deceased, but living at Mombasa, having been separated from the deceased. She said that she started living in Mombasa in 1976 where she is to date. She averred that between 1978 and 1981, the deceased never visited her at the Mombasa residence, but insisted that she still remained his legal wife. She said that she never visited him where he was staying. Whenever he visited Mombasa she said he usually stayed at State House, Mombasa, and at the Oceanview Hotel, but she did not visit him at those places, explaining that she would usually be accompanied by Eddah Wanjiru and she did not want a conflict. Four (4) months before he died she stated, the deceased sent the Mombasa District Commissioner (DC) to her to initiate reconciliation between them, he died before they could meet. It was her evidence that it was the deceased’s driver and bodyguard who had informed her about Eddah and the witness did not come into contact with her. She blamed Eddah Wanjiru for denying her a chance to reconcile with her husband. She asserted that Eddah Wanjiru was never married to the deceased, but the two were together in the same house. She further testified that the deceased did not have children with Eddah, but she testified that she saw her heavily pregnant on the day of the funeral. She mentioned Eddah Wanjiru’s children as Sylvia, Fiona, Benjamin and Marion, adding that she got to know them well as she had begun to interact with Eddah after both of them became administrators. She described Sylvia as a child of mixed race, who could not have been fathered by the deceased. She insisted on a deoxyribonucleic acid (DNA) test to establish the paternity of the said child. For the rest of Eddah Wanjiru’s children, Margaret Njeri testified that they were born after the deceased’s death. She was shown copies of birth certificates showing that Beatrice Wahu was born on 19th January 1984, Benjamin Christopher Njunu was born on 5th July 1985, while Marion Michelle Wangui was born on 8th September 1993. She said that all were of mixed race, same for Marion. She asserted that although Eddah Wanjiru has beautiful children, none of them were sired by the deceased. She said she did not know of the father of Eddah’s children. The witness said she had two children, Moses and Lydia, but conceded that they were not sired by the deceased. She said her children and those of Eddah Wanjiru were not entitled to benefit from the estate of the deceased, pointing out that it was only Eddah Wanjiru and herself were entitled to inherit. When shown the order by Nambuye J. of 28th May 2010, she conceded that only the children in the first and second houses benefitted from the partial distribution the subject of the order. She stated that she was not happy that she did not have children with the deceased, and imagined that it was not Eddah Wanjiru’s wish to have children outside wedlock. On Eddah Wanjiru and the City Centre plot, the witness testified that Eddah had leased it out, and was collecting revenue from it in the rage of Kshs. 200,000. 00 to Kshs. 500,000. 00 daily, but she has never accounted for the monies collected. She testified that she had even sued her in HCELC No. 555 of 2011. She was a director in the company owning the City Centre plot. On Eddah Wanjiru said the Oceanic Hotel and the Oceanview Beach Hotel, the witness testified that Eddah Wanjiru had been managing the same after the deceased died. She was said to have never accounted for her management of these assets. She testified that she, the witness, Isaac and David signed for the deceased’s 11,000 shares in the company that owned the Oceanview Beach Hotel, to be transferred to Eddah Wanjiru. She stated that she felt that she and her co-administrators had made a mistake in signing away the shares to Eddah Wanjiru. On the Kiambaa Gichiku plot, she testified that the same was part of a larger piece of land belonging to the late Senior Chief Koinange. She alluded to suit over the land between Charles Karuga Koinange and his brothers. The court ordered that the land be subdivided into six (6) pieces, each representing a house in the estate of the late Senior Chief Koinange. The piece that should have gone to the mother of the deceased was given to Eddah Wanjiru. She argued that the share that went to Eddah Wanjiru should have gone to the estate of Mbiyu Koinange, given that the land in question was ancestral land. She stated that her mother-in-law’s share was divided by Charles Karuga Koinange and Eddah Wanjiru. She explained that the same was done deliberately to … the first house of the late Senior Chief Koinange as the same was the most successful of the six houses of the late Senior Chief Koinange. She asserted that the same was wrongly given to Eddah Wanjiru instead of being given to the estate, and therefore the same should form part of the estate and should be available for distribution. On the shops along Biashara Street, the Nyali Flats in Mombasa and the Railway Go-downs along Shimanzi Road in Mombasa, she testified that the same were sold through court orders and for some the family sat and agreed on their disposal to settle debts and for the upkeep of family members. She was specific that the Biashara Street shops were sold on the strength of a court order, but she could not tell how the Nyali Flats and the go-downs were disposed of. She could recall that Mr. Pandya, Advocate, who was involved in the disposal of the Mombasa properties, but she could not tell whether such an account was ever rendered. She stated that the family members involved in the sale were Eddah Wanjiru, David Njunu and herself. She was shown copy of a marriage certificate exhibited in her affidavit of protest sworn on 3rd May 2012, and she stated that was their certificate of marriage. She testified that she did not have the original of the certificate for it was lost in her various shiftings from one place to the rest. She stated that the document in her possession was a certified copy of the original. She testified that she was first married by the deceased under Kikuyu Customary Law on 8th August 1976. She stated that she started cohabiting with the deceased on 8th August 1968 at Ehothia Farm. The customary law ceremony was conducted after the parties had been in a cohabitation for eight (8) months. It allegedly took place at King’eero village of Lower Kabete at her parents’ home. She said that her parents were Loise Wanjiku Gatiba and Paul Fredrick Gatiba. She stated that the children for the first and second wives were not invited to the ceremony. She cited the 8th August 1968 as the date when the deceased first took her to the home at Ehothia Farm. She stated their immediate neighbours to have been Mr. and Mrs. Mbua, the Gathara’s and the Kibue’s. She identified members of the families of these neighbours who are still alive and who testify in the matter as Wanjiru Gathara, Mr. and Mrs. Mbua, Mrs. Thairu and her daughter, and Mrs. Kibue. Looking back to the function at King’eero, she said it was a large gathering of about 100 people, among the deceased’s brother Charles Karuga Koinange. She said that she was introduced to the late President Jomo Kenyatta, but he did not attend the function. Jeremiah Nyagah did not also attend the function. She said she could get the people who were at the function and who are still alive to testify as witnesses. After the 1968 function, the parties allegedly lived together at the Ehothia Farm upto 1976. They did not have children, but the witness adopted two children after the deceased’s death. The names of the two witnesses were given as Lydia Wambui Mbiyu and Moses Njunu Mbiyu. She said that she named the children in accordance with Kikuyu tradition after the parents of her deceased husband. These adoptions were done in 1984-1985. She stated that Mary Njoki was the wife of the deceased’s brother, Charles Karuga Koinange. She testified that when she got married to the deceased in 1968 she discovered then that there were divorce proceedings between Charles Karuga Koinange and Mary Njoki. She stated that if there were other divorce proceedings after 1968, then they ought to be a second one. She said that as of 1968 the two were not staying together. Attempts in 1967-1968 by Jomo Kenyatta’s brother to reconcile them did not bear fruit. The witness could not tell whether the divorce was granted or not. She testified that she left the Koinange home in 1976 and moved to Mombasa. She never met the late Mbiyu Koinange thereafter. She re-affirmed that at the time of death, they were living separately. She stated that none of them wanted divorce as they loved each other, as although both of them were in position to move for the dissolution of the marriage, none of them sought divorce. She said that todate she still have their wedding ring. She asserted that there was no decree of the dissolution of their marriage, and if there was anyone holding one then the same must be a forgery. She testified that she went back to Ehothia Farm with the blessing of Charles Karuga Koinange, whom she described as a good man. She had told him that she wanted to go back to the matrimonial home at Ehothia Farm and asked him to provide her with a pick-up to move her wares from Mombasa to the farm. She reiterated that she never cohabited with him, adding that Mary Njoki, could not recognize her as a wife as the witness had not been married to her husband. She stated that she knew a body guard of his late husband known as Samuel Karanja. He took her back to her parents after she disagreed with the deceased. That was in 19765, but she could not recall the exact date. Her parents had by then moved from Kabete to Thika, so she was taken to Thika. She explained that her disagreement with the deceased was over some small issue, something she had done, what she would not have done were the older and wiser. After three days the same Karanja was sent by the deceased to pick her up and take her to him, but as fate would have it she had already left for Mombasa. While at Mombasa, the deceased sent a Senior Police Officer to pick her up and to take her in Nairobi. She was taken to the office of Mrs. Edah Gachukia to explain what had made her so angry so that she could not go back to her husband. She suggested a meeting with elders, but the deceased declined. He also declined a meeting between the witness, himself and his brother Charles Karuga Koinange. At around that time she spent about a week at the home of Charles Karuga Koinange, with the consent of the deceased. She attested that at the time Mary Njoki was around. She denied cohabiting with the said Charles Karuga Koinange. She averred that her life was not in danger at any time, she could not recall recording a statement with the police over such danger, she never visited the Criminal Investigations Department (CID) to record a statement and she never recorded a statement with the police to the effect that her life was from Mary Njoki. She was shown documents from her supplementary list of documents dated 18th July 2013 and answered questions relating to photographs in the said list. She stated that persons in the first photograph were a one-time Kiambu DC, Mr. Kang’ethe, the late Mbiyu Koinange and the witness, and Mr. Jeremiah Nyagah, a Cabinet Minister in the government of Jomo Kenyatta and his wife, Eunice. She was wearing a wedding gown and the DC was giving her a marriage certificate. The second photograph depicted Mr. Nyagah, the witness, the deceased and Mrs. Nyagah, while the last photograph was of the witness with the deceased. She testified that the photographs were taken by a Mr. Kinyanjui, who was then the head of the Presidential Press Unit. She could not tell Mr. Kinyanjui was still alive. She collected the photographs from him some ten years back, having been taken to his office by a Nancy Wamaitha. She stated that the marriage ceremony took place at their matrimonial home. The DC had come over there. The children of the deceased were said not to have attended the function, she stated that it was the responsibility of the deceased to invite them to the function. She asserted that the photographs showed that a wedding ceremony took place. Most of the players at the function were said to have died, except for her mother who was too old at the time the testimony was given. She said that farm workers were present at the function, some of them are still alive and could give evidence. There was a celebration at the compound attended by about fifty (50) or so people. Although the deceased was a Cabinet Minister at the time, he chose to hold a reception of only fifty or so people. Charles Karuga Koinange attended the reception, but the witness could not recall seeing Mary Njoki there. She averred that not all who attended the reception were dead, explaining that she did not know that their testimony could be required for her to obtain their statements. She explained that she knew Charles Karuga Koinange very well. She knew his wife too, Mary Njoki. He had previously married Nduta with whom he had over eight (8) children, who she named in court. He had three (3) children with Mary Njoki. He lived at Njuno Farm, near Kiambu. She testified that she was not aware of Mary Njoki’s businesses. The witness stated that she did not know about Ngorongo Estate, for she only know of Charles Karuga Koinange’s property at Njuno Estate. He used to live previously at Banana hill with his wife before he moved to Njuno Estate. She could not state when he married Mary Njoki, saying that when he got married he found the two though separated. She averred that she adopted her children in the 1980’s, after her husband’s death, but Charles Karuga Koinange did not assist her with the adoption process. He only assisted with raising them, in that he assisted with school fees when the children were doing their secondary school studies at Coast Academy. She used to collect the school fees from him at his Njuno Estate office. He at one time assisted her with a tractor to farm at Ehothia Farm. When she moved back to Ehothia Farm after her husband’s death, she found her house occupied by the Manager of the Closeburn Estate, so she occupied her late mother-in-law’s house at Ehothia Estate for two (2) months. David Njuno and Charles Karuga Koinange came to the compound at some point to know whether she had a marriage certificate, when she told them she had one, they left without asking to see a copy. She asserted that Charles Karuga Koinange was not her husband, and she named her children after her parents-in-law, who were Charles Karuga Koinange’s parents-in-law. Charles Karuga Koinange died eight (8) years after she went back to Ehothia Farm. She attended the funeral and Mary Njoki was present. She denied causing trouble in the marriage between Charles Karuga Koinange and Mary Njoki. She denied having an affair with him. She denied fighting physically with Mary Njoki over Charles Karuga Koinange at the All Saints Cathedral at a relative’s wedding. She denied causing the detention of Mary Njoki at Kilimani Police Station thereafter. She stated that she was not a casual labourer or worker at Ehothia Farm, asserting that allegations to that effect were pure lies. On being shown the statement of Lennah Wanjiku Koinange she stated that Lennah Wanjiku Koinange did visit her at Nyali, Mombasa, once or twice, but denied that she was then residing at a residence belonging to Charles Karuga Koinange, nor being married to her at the time. He denied being co-joined to the divorce proceedings between Charles Karuga Koinange and Mary Njoki, nor being ever served with papers in that suit. She stated that she did not know whether there was even such a case. On being shown the statement by George Kihara Mbiyu dated 15th June 2013, she asserted that she had cohabited with the deceased between 1968 and 1976, after that he was with Eddah Wanjiru, stating that he got the information about Eddah Wanjiru from a bodyguard and divorce of the deceased. She asserted further that there was no certificate of her divorce from the deceased. She also confirmed that he did not visit the deceased after their separation. She also asserted that the issue of being divorced from Charles Karuga Koinange did not arise as she was never married to him in the first place. She affirmed that she lived at Mombasa and Ehothia Farm, but mostly at Mombasa. The witness averred that after he husband’s death, she would visit Ehothia Farm in hired vehicles, saying that she only used Charles Karuga Koinange’s vehicle only once. She stated that she never claimed any part of the estate of Charles Karuga Koinange, and that although he died testate, he did not name her as beneficiary in his will.

26. Eddah Wanjiru Mbiyu again her testimony on 4th November 2013. She was cross-examined first by Mr. Munge. She confirmed that Isaac Njunu was a son of the deceased. She stated that his mother, Rith Damaris, had moved to Closeburn Estate, and that his family lives there todate. At the time of the sale of 100 acres from the said farm, she stated, the family agreed to set aside two (2) acres of the farm where his home stands. She went on to state that the deceased had told her that since he was divorced from Isaac’s mother, he would give 16 acres at Githunguri so that if he felt like taking his mother that he would. He was eventually given the 16 acres. She stated that there was no dispute as to persons who survived the deceased from the first house. On the survivors in the second house, she said that there was a dispute. She averred that the deceased wife in that house, Rith Damaris, had been divorced by the deceased. She asserted that the deceased only consulted Isaac Njunu from that house, the rest he never consulted and the rest could not claim to be close to him. She appeared to say that the rest were not entitled to the estate. She had a particular problem with Lennah Wanjiku. She stated that although the deceased was told by Mr. Charles Njonjo, the former Attorney General to educate David Waiganjo, Kihara and Karuga; he has not told anything to do with Lennah Wanjiku. She however said that she had recognized Lennah Wanjiku in her proposed distribution. She explained that the deceased had married the first wife in Church, the second wife, Rith Damaris, traditionally, the third wife at the DC’s office and the fourth one, herself, traditionally. She stated that Margaret Njeri had been divorced in court. The divorce decree was alleged passed in June 1981, she recalled the deceased’s lawyer as Mr. Sam Waruhiu. She said that the deceased had been advised by his lawyer that Margaret Njeri was, after the divorce, not entitled to inheritance from his estate. She stated that when Margaret Njeri was granted letters of administration to the estate of the deceased, she had raised the issue with her lawyers. She explained that she was married in 1975. She stated that she was the head of the deceased’s household as the deceased had made her understand so. She further stated that she did have children with the deceased, on the basis that even if they were born after his death they married under Kikuyu customs before his children. She specifically said that he left her pregnant with his child, Sylvia Wambui. She conceded that the rest were born after the deceased’s death, but she insisted that the deceased was the biological father of the child. She argued that the issue of Sylvia’s paternity only came up in recent times, especially after the sale of the 100 acres of Closeburn Estate when the sale money was shared out to individual survivors. She stated that she could not remember who bought the 291 acres out of Closeburn Estate. When shown the order authorizing the sale she confirmed that the sale was to Enclaire Management Ltd. She denid having any personal interest in Enclaire Management Ltd and asserted that she had never seen a letter in the headnote of Enclaire Management Ltd signed by him. She also said that she had no idea how the Aga Khan foundation came into the picture. She denied that the administrators sold more than 291 acres. S eh explained the original plan was to sell 202 acres, but the acreage was increased to 291 acres as part of the land was taken up by the Northern Bypass and wayleaves. She stated that the estate was paid for 291 acres. The lawyers who acted in the matter were Messrs. Waweru Gatonye & Co. Advocates and Waruhiu & Gathuru, Advocates appointed by the court. She denied that it was the administrators who proposed advocates, asserting that it was the beneficiaries who suggested their names. She denied that the said lawyers were overpaid. On the City Centre plot, she stated that the same was registered in the name of the Koinange Investment and Development Ltd. After the deceased died, some family members became directors of the company. She stated that the plot was vacant and was utilized as a parking lot and the company was collecting parking fees. The money was said to go to company coffers. She however denied that the company collected Kshs. 250,000. 00 daily. She testified that Kshs. 44,000,000. 00 was spent from the moneys raised from the sale of a portion of Closeburn Estate to settle outstanding Council rates on the City Centre plot. She blamed the debt on family members who had been contracted to manage the car park for not paying the Council thereby exposing the estate asset to risk. She was of the view that the amount of Kshs. 44,000,000. 00 should be recovered from the beneficiaries who ran up debt, but not the administrators on the sale of the 100 acres of Closeburn Estate, she denied fronting Dalux Ltd. She stated that she was at a meeting when an offer of Kshs. 1,300,000,000. 00 was made by the company, but the property was sold for Kshs. 350,000,000. 00. She denied causing a loss to the estate from the said sales. She was of the view that the sale was valid as it was sanctioned by and done through the court. She denied that she had influenced the sale of the most prime part of the estate. She conceded getting a commission of Kshs. 57,000,000. 00 on the said sale, but said was legal as the family had decided that family members who would introduce a successful buyer would get 10% commission. She asserted that the commission should not be recovered from her for it was commissioned by the court. On Muthera Farm she testified that the family decided to sell the asset as the same was under threat from the Maasai who claimed that the same was their ancestral land, asserting that that was the main reason that they decided to sell the land. She dismissed the suggestion the SFT debt was the reason for the sale as Margaret Njeri’s money. She said all the administrators except Rith Damaris, instructed the administrators who acted for the estate in the sale, she denied that she was the one who instructed the lawyers to transfer the property against court orders. She also asserted that it was not true that the beneficiaries were excluded from the sale; saying that the sale actually started with the beneficiaries, pointing specifically at Lennah Wanjiku. She stated that she was not aware if that legal fees were paid to the advocates by the administrators, saying that the legal fees ought not to be recovered from them. On the Lunga Lunga property her evidence was that Council rates were being paid on the plot, but the property was occupied by squatters. She explained that the administrators wanted to sell the property but the same never went through. On the property known as Thirstine Estate in Kiambaa, she asserted that it belonged to the estate for the deceased had bought, adding that it was the only property he had bought without a loan. She testified that before he died, the deceased had approached the Co-operative Bank with a view to obtaining loan money for a project, but at the time the Co-operative Bank could only lend to cooperatives, consequently the deceased was advised to form a cooperative. He introduced Charles Karuga Koinange, Paul Mbatia, Isabel and others into the property as a finality to get the money. He was said to have been managing the property before he died, but when he died his brother, Charles Karuga Koinange took advantage to say that only those listed as cooperators were entitled to a share in the property. She asserted that the land in question was estate property or the alleged cooperatives did not pay a penny for it. She stated that the title to the property as held by the Cooperative Bank. She told the court that the administrators had instructed Mr. Lee Muthoga Advocate to pursue the matter, but he was appointed a Judge to the ICTR – Rwanda based at Arusha and nothing much was done. He had though written some letters for Mr. Charles Karuga Koinange and his son Dr. Wilfred Koinange.

27. She testified that she was the director and chairperson of the board of directors of the Koinange Investment and Development Co. Ltd. She stated that she was not a shareholder in the company. The company owned LR No. 209/19099, which it also managed by collecting parking fees. She denied that she and her daughter Sylvia collected parking fees for the plot, stating that she was not managing the property alone. She asserted that rates were paid regularly, saying that she was not aware that the property had been advertised for sale for non-payment of rates. On the Oceanview Hotel, she testified that the deceased held 11,000 shares in the company that owned the hotel. It was her case that the deceased had informed the company that she was the next of kin, consequently she got the e shares after his death. She asserted that the estate had no interest in the property since the estate does not have any shares in the company, she was therefore not obliged to account to anyone. She said that the hotel has been given to another company to run. On the Oceanic Hotel, the deceased was said to have held 1000 shares in the company which owned the hotel. She averred that no one took over the shares after his death. The hotel was sold to the Aga Khan Foundation. She filed a suit on the same which is still ongoing. She stated that she informed Margaret Njeri Mbiyu about it and she assisted her in getting lawyers at Mombasa. She denied holding documents of title to the property. On Gichiku Farm, she testified that the same was the ancestral home the late Chief Koinange, the father of the deceased. The property was 36 acres originally. The property was distributed in HCSC No. 66 of 1984. The house of Mariam, to which the deceased belonged, had two sons – the deceased and his brother Charles Karuga, got six (6) acres out of the 36. The six acres were divided between the deceased and Charles Karuga, where Charles Karuga’s share went to one of his sons, while Mbiyu Koinange’s share went to Eddah Wanjiru. She asserted that it was the clan that gave her the three acres. In her view the property did not form part of the estate of the deceased. She stated that her matrimonial home is elsewhere, but not on the subject property. She testified that she was married to the deceased conceding that her grandmother came from the clan of the deceased. They came from the same area in Kiambaa, but she denied that they shared a very close familial relationship as to prohibit marriage between them. She went to Kiambaa Primary School, leaving in 1969 and joining Form One in 1970 at Chania High School, where she sat her fourth form examinations in 1973. She was schooling with two of the children from the second house, one of them, Isaac Njunu, being her deskmate. After secondary school, she studied typing and worked as an untrained before she was employed at the Office of the President in 1975 as Clerical staff. She worked in 1975 and part of 1976. She resigned after she married the deceased in November 1975 so as to concentrate on her wifely duties. It was her case that it was the deceased who asked her to resign. She stated she was married traditionally. She described the deceased as her workmate at the Office of the President. She conceded being aware that the deceased wanted to write a biography stating that he did wrote it. She denied that she typed it for him, and further that she had been to his home for purpose of typing the biography for him. She asserted that although she did type many letters for the deceased in the office, she did not type his biography. She said that they stayed at a house in Waihuthia Farm, but not in House No. 1920, which she knew and visited. They had three typewriters at the house in Waihuthia Farm, and she used to type on them, but when he retired there was not much to type. On her marriage to the deceased, she testified that she was married traditionally, although there was no ceremony. She explained that her father was a layleader at the ACK St. John’s Church Kiambaa, implying that his position as clergyman would allow him to be party to traditional ceremonies. Her case was that at the time the deceased married her, she did not have a wife, and therefore he was a bachelor. She had known of the first wife Loise when she was a small girl, she did not know Rith Damaris – only seeing her for the first time after the deceased’s death, and she did not know Margaret Njeri by 1975 as she only saw her after the deceased’s death when they were seeking letters of administration to the deceased’s estate. She stated that the deceased had told her to the first and second wives, and also talked about Margaret Njeri saying that he had married her but they had disagreed and she was no longer his wife. She denied that she was a mistress of the deceased. She denied too having married Harry Reginald and stated that she did not even know him. She asserted that her daughter Sylvia was not a half-cast, in fact she looked like the deceased. She testified that all her children were beneficiaries to the estate even though they were born after the deceased’s death.

28. On Thimbigua Farm she stated that the same was originally 100 acres but because of the road it was reduced to 90 acres. The same was part of the estate for the whole of it had not been given to Barbara Koinange. She testified that Barbara Koinange had forged documents so as to claim it. She informed the court that there were pending criminal proceedings arising from the said forgery. She said she was aware that Barbara Koinange attempted to sell 41/2 acres of Thimbigua Farm to Tangulizi Ventures Ltd, and was paid Kshs. 40,000,000. 00, which she did not give to the estate. She was of the view that she could not refund the sale price to the estate because the estate was not selling the land. On Oceanview Hotel, she stated that a meeting was held at the hotel involving David Njunu, Isaac Njunu, Margaret Njeri, Kassim Lakha and Pandya where the shares held by the deceased in the holding company were transferred to her. David, Isaac and Margaret were administrators, while Mr. Kassim Lakha was the Managing Director of the company, while Mr. Pandya was their advocate. She asserted that the deceased had named her as the next of kin with respect of his shares. On the Oceanic Hotel, he testified that he had never received shares the deceased held in the company which owned the hotel. She claimed that she wrote letters to the company on the shares and even filed a suit against the company. She had also sued the company which owns the Oceanview Hotel over certain issues. On Waihuthia Farm she testified that the same was 198 acres, and that she used to utilize it by farming on it. She said she farmed the entire 198 acres. She also ran a restaurant and guest house at it called Sycamore Inn, which was ten (10) years old as at the date of her testimony. She testified that she built the establishment with her own money without any contribution from the estate. She therefore did not see any basis for sharing its proceeds with anyone. She had since l eased it out. She testified that part of the land had also been leased out by her to a flower firm called Kioga Company Ltd.

29. She stated that she was 21 years old in 1975 when she married the deceased. She insisted that the marriage was traditional. Dowry was given, and after three days three old men were sent to her father. She could not tell the venue of the meeting where dowry was negotiated but said it could have been at the father’s home. “Ngurario” was prepared and the deceased was represented by his neighbor called Ben Gatu and another person called Samuel Mbugua. She was present at the ceremony. A goat was slaughtered and she witnessed the cutting of its shoulder in accordance with the Kikuyu custom. She could not tell whether the ceremony took place in 1975, but there was a funeral the same day of a son of Charles Karuga Koinange and therefore the ngurario ceremony did not take long. She stated that she lived with the deceased until he died on 3rd September 1981. By the time of his death, they had not sired children, but he left her seven (7) months pregnant. Two months thereafter she delivered Maryanne Sylvia Wambui. She insisted that her daughter was not of mixed race, but a biological child of the deceased. She stated that she was ready for a DNA test. She conceded that Maryanne Sylvia was not paid anything out of the several sales of estate property ordered by the court, saying that that was why she had instructed a lawyer to represent her. She was said to have been recognized by the family, even travelling from Britain to sign the documents to authorize the sale of portion of Closeburn Estate to Centurion Ltd. She said that all the property she received, she received on behalf of her household. On Margaret Njeri, she said she knew her, she had been married by the deceased and divorced. She did not have details as to when the marriage took place, but the deceased had told her that he had married her at the DC’s office Kiambu. She asserted that Mr. Sam Waruhiu, advocate, had told her and the deceased that the divorce between the deceased and Margaret Njeri had gone through. She said that was in June 1981. Her evidence was that by then the first wife had died, the deceased had separated from the second wife as well as from Margaret Njeri. She said that she had never seen any document relating to the divorce, but insisted that the two could not lie. She said that by the time the deceased died she knew that Margaret Njeri was not the deceased’s wife, she only came back to the deceased’s property at Ihuthia Farm after his death with the help of Charles Karuga. She however did not occupy the house there, although she farmed the land, even upto the date the witness was testifying. She stated that she and Margaret Njeri applied separately to be joined as co-administrators. Margaret Njeri was supporting Charles Karuga Koinange, but the court appointed her instead. After the sales of portions of Closeburn Estate both Margaret Njeri and the witness got shares that were slightly higher than those of the children. She continued to state that she knew all along that Margaret Njeri was not a widow of the deceased, and she had even instructed her lawyers to file an application to that effect. She did not recognize her as a widow, but the court nevertheless appointed her as administrator. In the Oceanview Hotel, she conceded that she did not see any document indicating that she had been nominated by the deceased as the person entitled to the shares of the deceased in the company that owned the hotel. On the City Centre plot, she stated that she had never tabled any accounts on the proceedings of parking fees collected from the plot. She explained that there are several cases by the beneficiaries against the company, and that was why she had not tabled accounts. She was of the view that the money paid on behalf of the company, being Kshs. 43,000,000. 00, by the estate to the City Council of Nairobi to settle outstanding rates should be refunded once debts are settled. On distribution, she said that Muthera Farm, Closeburn Estate, Waihuthia Farm and Thimbigua Farm ought to be distributed equally amongst the four houses. She said the three acres in Gichiku and the 11,000 shares in Ocean View Beach Hotel belonged to her and were therefore not available for distribution. She was cross-examined on the KPCU debt against the Closeburn Estate. She said the debt was settled.

30. The next witness to take the stand was Joyce Njeri Njunu, a daughter-in-law of the deceased, by virtue of being the widow of his son, the late Isaac Njuno. She had married the latter in 1975 and they had five children – Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru. She conceded that she lived abroad for some years, and indeed when her husband fell very ill and eventually died she was not in the country, and that she only came back after his death. She did not go straight back to the matrimonial home, but lived at Muchatha instead. She said that her children’s share, including Cedric’s should be through her. She narrated that upon her marriage in 1975 she went to either Waihuthia or Ihuthia Farms and found the deceased there. She could not however recall finding Margaret Njeri Mbiyu there, she found her instead at a house at Mombasa. She stated that she had variously seen her at family gathering, but could not commit as to whether she was a widow of the deceased or not. She mentioned that Margaret Njeri, Daniel Njunu and George Kihara were the persons in occupation of Ihuthia Farm. She said that she had no problem with Margaret Njeri getting a share of the estate so long as she proved to court that she was a beneficiary. She mentioned that since the deceased passed on questions arose regarding Margaret Njeri’s status as a widow of the deceased. When her attention was drawn to the partial distribution of Closeburn Estate by Nambuye J where Margaret Njeri was given a share, she stated that methodology adopted by Nambuye J. was not fair.

31. The next on the stand was Paul Mbatia Mbiyu. He testified that from the 1950’s the deceased had only the first and second families. When shown an order made in 1995 by Githinji J., he conceded that the order referred to distribution to each of the four houses of the deceased, saying that he consented to the order following the administrators. He conceded too that he had signed the document consenting to the disposal of part of Closeburn Estate to Enclaire Management Ltd. He conceded that Margaret Njeri and Eddah Wanjiru were paid substantial sums of moving out of the sales. He took the position that he did not know that Margaret Njeri was a wife of the deceased. On Thimbigua Farm, he stated that he was farming on a portion of the farm, the portion that his mother had been farming since the 1950’s. He conceded to having leased part of it to third parties just as other family members had done. The leasing, according to him, was done prior to the order made by Njagi J. he denied leasing out the Lunga Lunga property.

32. He confirmed that the late Isaac Njuno lived at Closeburn Estate where he had setup a home. The family had agreed that he should retain the portion where his home is located. The deceased had also given him a lifetime gift of the property at Githunguri. On Margaret Njeri, he stated that he met her from the first time five days after the deceased’s death. He put his age at 21 years as at the time of the deceased’s demise in 1981, and at the time he served as a District officer (DO) at Kajiado. She went to his Kajiado office and asked to see him. She introduced herself to him as the woman who had been with deceased. He told her that the matter she was raising ought to be raised at home in the presence of other family members. On Eddah Wanjiru, his evidence was that he had met her before his father’s death, but he could not pinpoint the exact time and place of meeting. He had no knowledge that the deceased had married her for he had never told him of his relationship with her, as expected under Kikuyu custom, where she should have been introduced to him as his younger mother. He did not therefore know her before 1981 as his father’s wife. It was after the instant cause was filed in court that their lawyers came forward claiming that they were wives of the deceased. He stated that t the family sat and agreed that Margaret Njeri was there before their grandmother died, and after she died she disappeared only to reappear after his father died. He stated that his mother was married in Church in 1942 and died in 1966. He stated further that he was aware that Rith Damaris was married under customary law, and he had no problem with her children inheriting from the estate. On Sylvia, he testified that she was his stepsister, and when he met her at her wedding she appeared much lighter than any of the children of the deceased. On sales of portions of Closeburn Estate he complained that the administrators did not get the beneficiaries involved. On Ehothia Farm, he ran and earn income during his father’s lifetime. It had a coffee operating and machinery. All that stopped after the deceased died, and family members moved in, stopped growing coffee and burnt charcoal. Those said to be on the ground included David Njunu, George Kihara and Margaret Njeri. He said Waihuthia Farm had cattle, pigs, a residence and an office during the deceas3ed’s lifetime. The deceased resided here, but the same was at the time of his testimony occupied by Eddah Wanjiru. On Thimbigua Farm, he said that the same was a family cemetery, where members of the second house were buried, five of them. He said that members of the first family were buried at Kiambaa. He testified that Thirstine Farm occupied about 250 acres. He described it as an ordinary farm, while coffee was grown on half of it, with dairy cattle on the other half. The family formed a Co-operative Society comprising of family members. He explained that the deceased intended to benefit all his children and nephews. He said that the nephews were to benefit as a gesture of gratitude to his only brother, Charles Karuga, for having cared for his family during the emergency period. He stated that he was aware of a Power of Attorney by his father in favour of Charles Karuga, explaining that the deceased, being a Cabinet Minister, he was too busy to take care of much of his property and businesses. He explained Dr. Koinange, a son of Charles Karuga Koinange, decided to have the Co-operative dismantled and to bring off/out the other members so as to retain the property. The value of the property was calculated and Dr. Koinange brought everyone else. The witness and others sued him over the matter but lost the case. Dr. Koinange has since died, and was buried at the property. The witness and third party have todate not been paid their money, he testified. He asserted that the property belonged to the estate as the same was unfairly transferred to Dr. Koinange, and it ought to be recovered. He claimed that what they were to be paid for the property were “handouts” that were not sufficient. He said that he was born in 1948 was a son of the deceased and was unwilling for a DNA sample taken from him to determine the paternity of Sylvia. On Kiambaa Gichiku, he testified that the deceased’s mother’s house was entitled to six (6) acres out of the estate of their father Senior Chief Koinange. The six were to be thereafter subdivided into two portions of three acres each between the deceased and his brother, Charles Karuga. He stated that those acres that should have gone to his father ended up with Eddah Wanjiru in unclear circumstances. On Muthera Farm, he explained that the farm measured 4292 acres. During the deceased’s lifetime, 3000 acres were under the mechanized farming of barley and wheat. There were two combine harvesters and 4 tractors. The rest was utilized for keeping merino sheep and cattle. He stated that the machinery on the farm was no longer theirs and he said he did not know who sold them. He said unaware that 3000 acres of Muthera Farm had been leased out. He stated that he heard of the invasion of the firm by the Maasai, and that he had been their huts on one corner of the farm. He alleged that the deceased h ad 70 acres off Mombasa Road behind Firestone Ltd, and had heard of some property at Nyahururu. He was however unaware of the alleged two house in Kileleshwa near Kenya High School. On Stephen and Stella Kibara, the witness stated that they were his nephew and niece, respectively, being the children of his deceased sister, Elizabeth. He said that the proposal in the application on distribution of the estate regarding the two was not fair and needed to be reconsidered.

33. George Kihara Koinange was the next witness on the stand. He testified that he was born in 1950, implying that he was old enough to be familiar with Kikuyu Customary Law. Under that tradition a house is called a githaku, which only applies to a polygamous marriage. In every githaku there has to be a wife and children. The woman without children cannot therefore have a githaku and has to be assimilated into another house. He stated that as Eddah Wanjiru had no children with the deceased, she did have a githaku. He stated that he was still in school in 1971 and staying at the family home at Kiambaa, which he stated was five (5) minutes from Ehothia Farm. When shown the photographs of the alleged marriage ceremony between the deceased and Margaret Njeri, he was able to identify all the persons on the photograph and to the solemnity of it, but was not ready to commit himself to say that it was a marriage ceremony. He stated that 1976, Rith Damaris was not living in the estate or any of the farms, for she had gone to live elsewhere. He said he had heard of a disagreement between her and the deceased. He explained that his mother died in 1966. He could not say whether he lived alone, but he definitely lived at Ehothia, and not Kiambaa. He got to understand that the deceased divorced Margaret Njeri after eight (8) years of marriage. He was cross-examined on his role as property manager. On the Lunga Lunga property, he testified that there were no tenants on the plot, saying that all who were on the ground there were trespassers. He explained the steps he took as the urban property manager to remove the trespassers. He appeared to blame the administrators for failing to fence off the plot to ward off the trespassers. On the City Centre plot, he stated that it was Eddah Wanjiru who was running it. On the alleged marriage between Margaret Njeri Mbiyu and Charles Karuga Koinange, he said that he did not know the celebration as he only got to hear of it. After the deceased died nobody occupied the farm at Ehothia, but the, David Njuno and Margaret Njeri began to farm the land. He could not explain how she came to be on the farm, but supposed that she colluded with David Njuno. He said after the alleged marriage Margaret Njeri and Charles Karuga Koinange live at CKK Estate. He did not visit there. He testified that Margaret Njeri became an administrator in 1993, and he did not object to her appointment. He also did not object to her sharing in the distribution of the proceeds of sale of portions of Closeburn Estate, adding that he did not get an opportunity to object. He said he had locus standi to object as he was an administrator. He stated that he was not satisfied with the proposals in the application dated 20th February 2012. On the sale of Muthera Farm, he took the position that the same was done behind the backs of the beneficiaries who were not consulted. He mentioned that officers had been made for payment of commissions for family members who introduced successful buyers. He indicated that he did not oppose the commission issue as he believed that the administrators were acting in good faith.

34. He stated that the list of assets was not exhaustive as some assets could have been left out. He mentioned a property measuring twelve (12) acres in the Thomson Falls area of Nyahururu. He said it was in an area called Ol’Njuno. He also said there was a property behind Firestone and another near the Muthaiga Police Station, measuring six (6) acres or so. He stated that he married his first wife in 1979, but he could not recall who then stood for his mother. He stated he could not recall that Eddah Wanjiru stood in as his mother. She however attended the second ceremony when he married a Kikuyu – Kamba woman. He also stated that she also assisted with his medical bills after he was injured at Muthera Farm and organized his transfer from Valley Hospital to MP Shah Hospital. He stated that he was unaware of any funds sitting in any bank account in the name of the deceased. He confirmed that his step-brother Isaac Njuno used to live within Closeburn Estate, stating that the family had agreed that the portion he occupied should be left to his family at distribution. He had also been given sixteen (16) acres of land in Githunguri by the deceased during his lifetime. He stated that there was no dispute as to also constitute the first two houses of the deceased. Regarding Margaret Njeri, he stated that he was not aware, prior to the deceased’s death in 1981, that he had married her. He said he was approaching 31 years of age when his father died, and therefore old enough to know what was happening. He stated that the funeral arrangements were made at the ancestral home at Kiambaa and Margaret Njeri was not recognized as a widow during the funeral arrangements and at the burial itself. He said that there was a grand traditional ceremony held at his grandfather’s home at Kiambaa when Margaret Njeri married Charles Kanga Koinange. That was about 10 years after the deceased died in 1981. He was aware that she lived in Mombasa, near the Nyali Police Station, in a house that he alleged had been given to her by Charles Karuga Koinange. On Eddah Wanjiru, he stated that she was a cousin of his father, and was only helping the deceased, but never married him traditionally. He testified that she was not recognized in the funeral as a widow. He stated that he was not aware of the relationship between his father on the one hand and Margaret Njeri and Eddah Wanjiru on the other. Regarding Sylvia Maryanne’s paternity dispute, he was of the view that a DNA test was the best way out and being a real son of the deceased he did not mind his sample being used for DNA test purposes. He said the children of Eddah Wanjiru did not look like the other children of the deceased. He said the man who was their father, a Goan known as Harry, who was since deceased. He said he was not in a position to say that their father used to maintain Eddah Wanjiru. He said Eddah had informed them that she was the one who took the deceased to hospital, but she did so as she was within the premises when he taken ill. She was acted as his assistant, and she took him to hospital in that capacity. He stated that he did not think that his father recognized her as a wife, he never told him that she was his wife and he did not recognize her as a stepmother. He said he should be given at least twelve (12) acres out of Closeburn Estate. On Ehothia Farm, he testified that the same measured 640 acres or so. During the deceased’s lifetime, the same was utilized for coffee growing and dairy farming, with a coffee factory and milking machines. The farming activities have all stopped. The coffee factory was demolished and Margaret Njeri was said to have come with a truck and casted away the cattle to an unknown destination. He confirmed that it was he, David Njuno and Margaret Njeri who occupied the farm. He said that Waihuthia Farm was next to Ehothia Farm, and used to farm had residential house with a library. The farm had pigs, cattle and poultry. The animals disappeared after the deceased’s death, and the chicken houses and cattle pens and the residential houses were destroyed. It was Eddah Wanjiru who stayed on the property after the deceased died. He took the position that she should be the one to explain what had happened to the property. She was still said to be still in occupation. She had leased the property to a flower company. The income from the farm was not being accounted for. On Thimbigua Farm, he testified that the farm was being used for subsistence farming during the deceased’s lifetime, although a section of them was under coffee. The deceased had started constructing a house on the property for his wife Rith Damaris, but the work stalled at the foundation stage during the emergency. Rith Damaris and some of her children are buried on the property. He testified that he had heard that Tangulizi Venture Ltd had leased a portion of the farm from Barbara Koinange. He stated that he was aware of the alleged transaction between Barbara Koinange and Tangulizi Ventures Ltd but said that the same was founded on forged documents. He took the position that if Tangulizi Ventures Ltd had a claim over the Thimbigua property then it should direct it to Barbara Koinange and not the estate. The Ikinu property was under cultivation during the deceased’s lifetime, but after his death it was being cultivated by persons who leased it from the Eddah Wanjiru. He mentioned the properties in the Nakuru Industrial Area. He stated that the deceased intended to develop them before he died. He testified that they had since been invaded by strange persons. In his view the property still formed part of the estate of the deceased. On the shares in the limited liability companies, he testified that they form part of the estate, but they had not been receiving dividends. He was of the view that the administrators ought to account for the income from these properties. He said that Thirstine Estate was in the neighbourhood of Ehothia and Waihuthia Farms, and measured 267 acres or thereabout. According to him, the farm had coffee, tea and dairy cattle and some residential houses stood on it. He alleged that he had worked in the farm temporarily as a manager. He repeated the story about his father approaching the Cooperative Bank to borrow money, where he was advised to form a Co-operative Society. He formed a Co-operative Society with his sons and his nephews by Charles Karuga Koinange as members. The name of the farm was changed from Thirstine Estate to Rima Co-operative Society Ltd. The deceased died before the loan was disbursed. The title deed was given to the Co-operative Bank and has never been released to the estate. He stated the officials of the Rima Co-operative Society Ltd to be the deceased as Chairman, Dr. Koinange as Secretary and Charles Karuga Koinange as treasurer. When the deceased died, Dr. Koinange, who was in a powerful position in government, caused the property to revisit to his family despite efforts by the deceased’s family to hold on to it. He offered to buy out the deceased’s family at throw away prices, but the family has declined to accept the money. He insisted that the asset still formed part of the estate of the deceased. On the Kiambaa Gichiku farm, he testified that the same was called 1920 by the family and it used to house the home of the late Senior Chief Koinange. It measured in total thirty six (36) acres, and had been given to the deceased by his father Senior Chief Koinange. The other houses of Senior Chief Koinange objected and the matter went to court. It was ordered that the property be shared equally among all the six (6) houses, with each house taking six (6) acres. The deceased’s mother, Mariamu was entitled to six (6) acres, to be shared equally between her two sons, the deceased and his brother Charles Karuga Koinange. Charles Karuga caused his share to go to one of his sons, while the deceased’s share was taken by Eddah Wanjiru. He stated that Eddah Wanjiru was neither a clansman nor a widow of the deceased and therefore there was no basis for her to take the ancestral land. Under custom, the property should have gone to the eldest son of the deceased, David Njuno. The said property was described as Kiambaa/Gichiku/2324, registered in the name of Eddah Wanjiru. The registration was said to have taken place on 29th October 2007. He maintained that t the property irregularly went to Eddah Wanjiru. On Muthera Farm, he testified that he received permanent injuries on the farm. It measured 4292 acres. Prior to his death, the deceased was growing wheat on the farm and had about 2000 grade cattle and 8000 sheep. He also had two (2) combine harvesters, four (4) trucks and lorries on the farm. After the deceased died all these assets disappeared. He pointed accusing fingers at his brother David Njuno, Eddah Wanjiru and Rith Damaris. There was a forest too covering 800 acres of the land which was cut down, but he stated that he was not clear on who did it. It was his case that it was in that way that outsiders invaded the farm. He stated that he was aware of the sale to Impulse Developers Ltd. In his view it was done by the administrators behind his back, and the beneficiaries were against as their administrators consent had not been obtained. They eventually went to court and obtained an order to sell the property. He accused David Njuno, Eddah Wanjiru and Margaret Njeri of selling the property. He testified that he was not aware of any squatters, as only twelve (12) persons had been allowed by the family on the land, and they were actually their farmer workers on the land. He further testified that there was no actual threat from the SFT. The family had sat with SFT and had been given time to raise money to settle the outstanding debt to SFT of Kshs. 6,400,000. 00. Everyone in the family sought to raise the money, and it was eventually Lennah Wanjiku who settled the debt. There was no need to sell the farm, especially after the debt was settled in full. He was surprised that the administrators sold the property even when they knew that the debt had been settled. Orders were made on 16th and 24th May 2006 to stop the transfer of the Muthera Farm to Impulse Developers Ltd. The property was transferred on 22nd May 2006. He stated that the transfer was done when there was a stay order in force. The deposit of Kshs. 21,000,000. 00, being 10% of the purchase price, was still being held by the administrator’s lawyers. He testified that Impulse Developers Ltd filed suit at the Commercial Division seeking to enforce the sale, but he subsequently withdraw the suit. He insisted that Muthera Farm was estate property. He explained that Koira Ltd owned a property at the centre of Mombasa City, and the deceased held substantive shares in it. There was a City Centre plot owned by Koinange Investments and Development Ltd, where the deceased held substantial shares. On Ocean View Hotel, he testified that the deceased held 11,000 shares in the company that owned the hotel, but he did not know what became of the shares. He confirmed from documents showed to him by counsel that the shares were transferred on 20th July 1989, eight (8) years after the deceased’s death. He stated that he was unaware that the court had authorized the transfer. On the Oceanic Hotel, he stated that the deceased held shares in the company that owned the hotel. He could not tell whether the deceased was receiving any income for the business. After his death, he said Eddah Wanjiru took up the affairs of the business and sidelined the rest of the family from the business. On the 70 acres of land off Mombasa Road, he said he knew the location of the plot. He stated that members of the family had told him that his father owned the property. He invited the court to conduct an inquiry to confirm whether the property existed and was transferred after the deceased’s death. He said that he had heard that Eddah Wanjiru, Mr. Manji, Paul Koinange and Mr. Biwott were involved in transferring the property. On the alleged Kileleshwa properties, he stated that he was aware that there were two houses in that area, although he would not know of their exact location but alleged that they were in the neighbourhood of Kenya High School. He alleged that they were being taken care of by Eddah Wanjiru and she should account for them. He invited the court to conduct an inquire into the e two assets. On liabilities, he stated that the City Centre still had debts owing to the City Council of Nairobi. He alleged that the sale of 291 acres of Closeburn Estate to Enclaire Management Ltd was done mysteriously and blamed Eddah Wanjiru and the lawyers contracted to handle the transaction. He said he was paid Kshs. 10,000,000. 00 out of the proceeds, yet the administrators cash received Kshs. 21,000,000. 00. he alleged that the beneficiaries did not approve the payments, and although they questioned the payments, they were ignored. The statements of accounts mentioned a payment of Kshs. 43,800,000. 00 to the City Council of Nairobi, but there was no evidence that the said amount was ever paid to the City Council of Nairobi. He maintained that in the first sale of 100 acres of Closeburn Estate, Eddah Wanjiru was paid a commission of Kshs. 57,000,000. 00. He said that the fact that Eddah Wanjiru acted as his mother at his wedding did not make her a widow of the deceased.

35. The next on the stand was Lennah Wanjiku Koinange. She testified that she was a daughter of Rith Damaris, born in 1966. She explained her early days in school at Forest Road Nursery School and Hospital Hill Primary School. Issues arose about payment for her school fees after her father’s death as there was a delay in the settlement of the same. She lived at Ruiru with her mother. She asserted that she was a daughter of the deceased, and not of Kimani Kahara, a man she did not know nor ever met. She described her father as a well-educated and prominent person. She stated that her mother was of modest education, adding that it was her father’s choice to marry who she had described as a casual employee doing the menial task of collecting eggs at the hatchery at her father’s farm. She testified that she had once married Peter Matu and she had two children. She denied being a daughter of Kimani Kahara, asserting that she was ready to undergo a DNA test to determine her paternity. She and her mother relocated from Ruiru to Closeburn Estate, but she could not explain when that happened as she was a small child then. She said her mother would be at Waihuthia Farm where her father was and sometimes at Ruiru. She had also lived at Kiambaa, Banana and finally at Thimbigua where she settled. She explained that her father was buried at 1920 Kiambaa, near her grandfather’s grave. The deceased’s first wife, Loise Njeri was also buried in Kiambaa, near the witness’s sisters Florence Wanjiku, Mary Wambui, Elizabeth Waruinu and Isabella. Her mother was buried at Thimbigua. She described the placed as her matrimonial home in that when she was married by the deceased the place was given to her by the deceased’s father, and she lived there until she was arrested during the emergency and detained. It was her desire that she be laid to rest there. She had always held on to the title document to the property. The remains of some of her children were also interred there, that is to say Isaac Njuno, Solomon Kihara and Geoffrey Karuga. She added that her mother had married the deceased sometime between 1949 and 1950. She stated that she did not know whether Loise Njeri ever lived at Thimbigua. On Margaret Njeri Mbiyu, she said that she was never married to the deceased, and therefore she was not his widow. She explained that immediately after the deceased’s death, David Njuno was appointed administrator of the estate of the deceased, later he was joined by Margaret Njeri and Eddah Wanjiru, and much later by her mother Rith Damaris. When her mother was very sick, she granted her a power of attorney. She stated that the family held several meetings, which were attended by Margaret Njeri Mbiyu in her capacity as administrator. When referred to the order of Githinji J of 22nd March 1993, she said that she understood the order to refer to Rith Damaris, Margaret Njeri and Eddah Wanjiru and David Njuno in their capacity as administrators. On the order of 28th May 2010, where Eddah Wanjiru and Margaret Njeri were referred to as widows, she said that she objected to them being referred as such, but added that the matter before Nambuye J turned on something different, not on the status of the women. She conceded that there were several partial distributions of the estate, especially following disposal of portions of Closeburn Estate. She complained that the said distribution was not fair and was not done properly. Margaret Njeri and Eddah Wanjiru were paid part of the proceeds of sale. She asserted that her mother had filed applications in court where she had denounced the two as co-wives or widows. She stated that her mother attended family meetings and possibly signed documents, but that had everything to do with the administration of the estate and not about recognizing Margaret Njeri and Eddah Wanjiru as widows of the deceased. She asserted that her father’s family comprised of two households, and the meetings held that included Margaret Njeri and Eddah Wanjiru had nothing to do with confirming them to be wives of the deceased. She further added that whatever payments they received from the partial distributions were not received by them in their capacity as heirs. She stated that she was not aware of her mother having been divorced by her father. She said her mother lived at Ruiru between 1966 and 1981, but her father used to visit them. She denied that her father never saw her mother after she was born in 1966. She said that all through no one had protested as to her paternity, asserting that the persons raising the issue were not part of the family before she was born. She stated that she had never seen Margaret Njeri as her mother, but as an aunt having been married to her uncle, Charles Karuga Koinange. She had visited CKK Estate and Nyali Mombasa and seen the two together. She had also seen the fights between Margaret Njeri and Dr. Koinange and his sister as they tried to her edge out, adding that the facts of the marriage were clearly laid out in divorce cause number 51 of 1987. She added that there was an adulterous relationship between them. They resided at LR No. 134/8 Njuno Estate, Kiambu. She alleged that she visited them many times, where she was served tea by her and where she ate good meals cooked by her Swahili chef. They used to visit often over school fees, and it was Margaret Njeri they would find at home and she would call their uncle. She said that she never met Margaret at Ihuthia and did not recall her living there. She also visited her several times at Nyali, and at times found Charles Koinange there. The house she resided in once belonged to a company called Meko in which Charles Karuga Koinange was a director. The house was later transferred to the name of Charles Karuga Koinange and later to the name of Margaret Njeri. She recalled driving down to Mombasa from Nairobi in one of Charles Karuga’s cars, a Mercedes Benz, driven by Margaret Njeri. Given that background she questioned how Margaret Njeri would have become administrator of her father’s estate. She stated that Margaret Njeri had not lived on the estate property after the deceased’s death, even at the date of the testimony. She recalled seeing Margaret at the funeral talking to her mother, but she did not sit with the family nor wear uniform like the rest of the family. On the divorce matter, she confirmed that Margaret Njeri had not been named as a co-respondent, but asserted that she had been served with the court papers citing an affidavit if service filed in the cause which indicated that Margaret Njeri had been served at CCK Njuno Estate after she was pointed out by Charles Karuga Koinange. She added that Margaret Njeri was later kicked out of CKK Njuno Estate and her belongings thrown out. On the Thimbigua property, she testified that Barbara had purported to sell four acres of it to Tangulizi Ventures Ltd. Action was taken by Margaret Njeri and Eddah Wanjiru in their capacity as administrators to stop the sale. She further testified that she was aware of a plot situate near the Muthangari Police Station, which measured slightly over five acres. The original owner of the plot was said to be the Catholic Church. After subdivision the church surrendered a portion to the government and the government allotted the subplots to several persons, including the deceased. He was supposed to pay allotment fees within six (6) months, which he did not do, and the property reverted to the government. Several persons applied for its reallocation to them. Several letters of allotment were given out to a number of people, including family members such as George Kihara, Isaac Njuno and Eddah Wanjiru. The property was subsequently allotted to he and she satisfied all the conditions of the allotment culminating in the property eventually being registered in her name. She alluded to the matter being handled by the CID, but she was never charged in court over it. She asserted that the property did not belong to the estate, and she had disclosed the same to the family. On Muthera Farm, she testified that she was the one who paid the balance of the purchase price to SFT amounting to Kshs. 6, 400, 000. 00, which she had raised from the sale of part of the Muthangari property to Trento Kenya Ltd, a company in which Ho. Kabogo had an interest. She made the payment after she had consulted two administrators, David Njuno and Margaret Njeri. She stated that she was not aware that the administrators had agreed with SFT to settle the debt at Kshs. 2, 000, 000. 00. She asserted that her intention in paying the money was to save the property and also to enable her lease the property from SFT who were the registered owners of the property at the time. She denied approaching Hon. Kabogo over the sale of Muthera Farm. She denied that she and her family had at one time invaded Muthera Farm, and further denied that the second house treated the property as if it belonged to them. She denied that the family had agreed to sell Muthera Farm, stating that the same was sold secretly. It was her case that the application by the administrators for leave to sell Muthera Farm was made without the beneficiaries being consulted as had been the case before, and one of the administrators, Rith Damaris, did not sign it and had not been consulted. She asserted that there were no good reasons for selling the farm. She stated that the property was not under threat from squatters, nor did it have any debts save for what was owed to SFT. Firstly, the estate had no debts as it had just disposed of a portion of Closeburn Estate, the money was in the process of being distributed amongst the beneficiaries and a substantial amount was in the hands of the estate’s advocates. Secondly, there were no squatters on the farm and the same was peaceful after the government intervened to eliminate the threat that was there. She testified that the administrator sought leave to sell the property after they had sold the property and received the 10% deposit. She stated that she and her brother Isaac Njuno went to court and stopped the sale. That was after they learnt of the sale a month after it had happened. They also complained that consent of the Land Control Board for the sale had not been obtained, for although there were applications for consent none were on the sale or transfer of the property, but on its charging. She pointed out that under special condition number 3(c) of the sale agreement the assignment was to by all the administrators yet it was signed by only three (3) of them. Regarding the transfer of the property to Impulse Developers Ltd, she stated that SFT had no title to pass to a third party other than the estate of Mbiyu Koinange, and there was no transaction between SFT and Impulse Developers Ltd. She pointed out that the transfer was done on 22nd May 2006 and stamp duty paid on 7th June 2006, meaning that transfer was done before stamp duty had been paid. She argued that the direct transfer of the property to Impulse Developers Ltd denied the government a substantial amount of tax revenue by way of stamp duty. She urged the court not to endorse the sale saying that the property be distributed as the Impulse Developers Ltd had withdrawn their suit, HCCC No. 648 of 2006, against the estate. She named Eddah Wanjiru as the prime mover behind the sale Muthera Farm. She mentioned that she was not in agreement with the formula used by Nambuye J, the ratio of 3:2:1 to widows, children and grandchildren. On Closeburn Estate, she denied that her family was responsible for the destruction of the coffee trees and flowers that used to be on the farm. She testified that the sale of the 100 acres of Closeburn Estate affected the portion that she resided on and an order had been obtained for her relocation, she was to be reimbursed the cost of her relocation. The portion occupied by Joyce Njuno was also affected but it was ordered that that her two acres be unaffected. She stated that after the relocation to the Ruaka side, she worked on 100 acres of the property. She complained the money realized from the sale was not properly accounted for. The accounts availed by the administrators did not properly account for most of the expenditure of the money, which expenditures or payments had not been approved by the beneficiaries. She was of the view that the administrators ought to account for the payments, including the money deposited in the names of advocates for the parties. On the Lunga Lunga property, she testified that the plot had been invaded by squatters who had put up permanent structures on it. On Ihuthia Farm, she testified that no family member lives on the farm, but George Kihara, David Njuno and Margaret Njeri carried out farming on it. She put the acreage of the farm at 640 acres. She said she was unaware that Margaret Njeri lived at the farm with the deceased. She asserted that she never moved back to Ihuthia Farm. She said that although she had applied to have her removed as administrator of the estate, she had never tried to have removed from Ihuthia Farm. She said that she did not agree with the proposal to award a portion of the farm to Margaret Njeri and Eddah Wanjiru as they were not survivors of the deceased and they had squandered the estate to a very large extent. She would like the court to consider giving Stella and Stephen Kibara shares from the said farm. On Waihuthia Farm, she testified that she was unaware that the same was being occupied by Eddah Wanjiru, stating that she had only heard that the same had been leased out to farmers. No body lives at Waihuthia Farm. During the deceased’s lifetime, there used to be two houses and an office block. He used to live on the property. One of them is still standing and the other has been converted into a public house, called Sycamore Inn. She said that Eddah Wanjiru never lived there after the deceased’s home. She recalled that her mother used to arbitrate fights between Margaret Njeri and Charles Karuga’s wife, Mary Njoki. Mary Njoki wanted to eject Margaret Njeri from CCK Estate where she lived with Charles Karuga Koinange. The two were said to have lived together for seven to eight years. In 1997 the two were said to have been still together. She was shown document from the divorce file in HCDC No. 51 of 1987, which showed that she was served with certain court papers at the CKK Estate. On Eddah Wanjiru she testified to have met her properly in 1990 at a time when she was twenty-four (24) years old, at the estate’s lawyers’ offices after she had approached the family for help regarding treatment for her son who had a heart problem. She met Eddah Wanjiru under those circumstances, and she was introduced as an administrator. She testified to have interacted with the deceased many times at Ruiru where she lived with her mother and Waihuthia Farm where the deceased lived with her sister Isabella Wanjiku and a chef, and she never saw Eddah there. She used to visit the farm and even spend the night there, and she never saw Eddah there nor at the offices of the deceased. She stated that she attended her father’s funeral in 1981, and she put her age at the time at thirteen (13) or fourteen (14) years. She could not recall seeing the funeral programme, but she testified that there was a dispute over the programme for Charles Njonjo was said to have had done a programme that was separate from that done by the government. She described the funeral as a big event, attended by such dignitaries as former President Moi, GG Kariuki and Charles Njonjo, among others. She said she was not aware that her name was not in the funeral programme. She added that she did not see Eddah Wanjiru at the funeral. The family was dressed in a particular way, and Eddah Wanjiru was not amongst them. She could not recall the events surrounding the wedding ceremony for George, saying that she was a small girl then. She could therefore not therefore remember who had accompanied her father to the wedding. When shown a photograph from the said wedding, she stated that she was unable to tell who the woman next to her father was. She asserted that she knew Eddah Wanjiru as an administrator of the estate, although she laid claim to the estate as a widow of the deceased. She took the position that the issue of who the beneficiaries of the estate were was never addressed by the court at any stage of the proceedings, adding that it was never her evidence that the deceased had four wives. She asserted that Eddah Wanjiru was an administrator of the estate, but not a family member, saying that she worked with the deceased assisting him as a secretary. She was however unable to explain how she and Margaret Njeri ended up being administrators of the estate. She stated that the family was not agreeable to her being made an administrator, and that in fact there had been a dispute as to her being appointed administrator. She testified that she had never Sylvia Maryanne Wambui, and had only heard of her in the proceedings. She was said to have had a wedding to which the witness and other family members were not invited. She asserted that Eddah Wanjiru’s children were not children of the deceased for they born after his death. They were not maintained out of the estate, and their names did not come up during the distribution of the estate. On the Nakuru plots – Block 8/40, 41 and 42 – she said that the said plots were still inexistence, and denied that allotment letters were given to her in respect of the three plots. She said she was not able to explain how the rate payer for Block 8/41 changed from the deceased to Kishar Valji Gorasia and another, adding that she had no hand in the exchange, and if there was a change then the same was illegal and fraudulent. She disclosed that she lived at Closeburn Estate with her children and that she had leased out a portion to raise money for their upkeep and also for their security. She urged the court to consider allocating the thirty-six (36) acres she occupies and utilizes at the farm, saying that she was willing to give up her shares elsewhere. Other beneficiaries were also said to have been leasing property at Closeburn for their upkeep. She mentioned George Kihara and Paul Mbatia. She asserted that members of the second house have been in occupation of Closeburn Estate since the 1980s and the rest of the family was aware of that and had allowed them to engage in activities on the farm to earn an income to maintain their families. She said that the other persons in the family were also utilizing estate assets and they were not being called upon to account. She associated Margaret Njeri with Ihuthia Farm, Eddah Wanjiru with Waihuthia Farm and George Kihara with the Lunga Lunga property. She mentioned that she was aware that the Mombasa go-downs had been sold but she could not recall the year when that happened. On Stephen and Stella Kibara, she confirmed that they were the children of her sister Elizabeth Waruinu. She stated that they are entitled to the share that should have gone to their mother, which should be more that what is proposed in the application. On Isaac Njunu, she testified that he was his elder brother. She stated that before he died lived at Closeburn Estate, and his family remained there todate. She testified that he had been given LR No. 1232/13 Githunguri as a wedding present by the deceased, and he had even signed a transfer to fulfill those wishes. She identified the persons entitled to a share in the estate of the deceased as follows. From the first house, she named the survivors as the children of the dead first wife, being – David Njunu, Paul Mbatia, George Kihara, the late Mary Wambui Mbiyu (survived by daughter Stella Mbiyu) and the late Elizabeth Waruinu (survived by Stephen Kibara and Stella Kibara). From the second house she listed the following as the survivors of the second wife, now dead – the late Florence Wanjiku (survived by her daughter Barbara Wambui), the late Isaac Njunu (survived by his widow Joyce Njunu and children), David Waiganjo, the late Solomon Kihara (survived by widow Susan Kihara and child) and Lennah Wanjiku Koinange. She stated that there was no dispute as to the survivors in the first house, whereas in the second house, Margaret Njeri and Eddah Wanjiru disputed her, the witness, as a beneficiary. There other persons who are disputed as beneficiaries are Margaret Njeri, Eddah Wanjiru and her daughter Sylvia Maryanne. She asserted that her paternity has never been disputed before by anybody in the first two houses, and that it was only Margaret Njeri and Eddah Wanjiru who were raising it. On the assets available for distribution, she stated that Closeburn Estate is where the second house has its home, and urged the court to consider letting members of that house retain the portions they are retaining or utilizing. In her opinion, no beneficiary resides on Ehothia Farm; she agrees with the distribution proposed in the application. On Waihuthia Farm, she stated that the same comprised of three (3) titles. In her opinion, no family member resides on it. She said that the same should be distributed as per the distribution proposed in the application. On Ikinu Farm, she testified that no beneficiary lived there. She was of the view that the same should go to the first family, noting that the Githunguri property had been gifted by the deceased during lifetime to a member of the second house. she was of the view that it should be given to Paul Mbatia and George Kihara as proposed. On Thimbigua Farm, she mentioned that her mother’s house was being constructed there and several members from that house were buried there. In her opinion the transaction between Barbara Wambui and Tangulizi Ventures Ltd should not be upheld as it was based on forged documents; in any event the claim by Tangulizi Ventures Ltd was not against the estate but against Barbara Wambui as a person. She was of the view that Barbara should not get a share of Thimbigua because of her conduct, and she should be benefited from elsewhere. She stated that she was not party to the consent order involving Tangulizi ventures and some administrators, saying that she was aware only of the order cancelling the titles created on the Thimbigua property from the forged title and the order requiring deposit of part of the sale price for refund to Tangulizi Ventures Ltd. She did not support the order that Tangulizi Ventures Ltd be compensated for the portion that shall be found to be due to Barbara Wambui out of the Thimbigua property. She explained that she was awarded thirty (30) acres out of Thimbigua, being her portion and a portion from David Njunu who had surrendered his interest in that property to her. On the Nakuru plots, she stated that the same were not being utilized by any member of the family, and was free for distribution. She also said that the Lunga Lunga property was free for distribution. She explained that the Kiambaa-Kawainda property was proposed to Paul Mbatia as he had not gotten any of the Nakuru plots. She proposed that the Thimbigua and Banana Hill plots be given to David Njunu, while the two Gathanga plots ought to go George Kihara.

36. Stephen Mungai Kibara took the stand next. He testified that he was born on 7th August 1977 to Elizabeth Waruinu, who died on 11th June 2009. His sibling was Stella Wanjiku Kibara, who he said was resident in the US. He explained that his mother was a member of the first house. He testified that during the distribution of the money raised from the sale of part of Closeburn Estate his mother was treated the same as the other children of the deceased. She was allocated a sum of Kshs. 10, 000,000. 00, which he shared equally with his sister, Stella Wanjiku Kibara. He took the view that the distribution proposed in the application was not fair to him and his sister, asserting that her mother’s share ought to be equal to that of the other children of the deceased. He stated that he knew of only one grandmother, Loise Njeri, the mother of his own mother. Of Margaret Njeri Mbiyu, he said that he met her for the first time in 2010 in family meetings held after the deceased’s death to agree on the distribution of his estate She was introduced as a widow of the deceased. He testified to have seen Margaret Njeri in a photograph taken at his mother’s wedding. He had no objection to her inheriting from his grandfather’s estate. On Eddah Wanjiru, he stated that he got to know her in the family meetings that he attended, and that his father had said that she had been one of the wives of the deceased. He testified that it was his father who paid for his education. He stated that he was not aware that at his mother’s wedding the deceased had given her sixty (60) acres of land as a wedding gift. He said he was aware that his father’s family had a seventy-five (75) acre farm in Kiambu, but he did not know either it was the land given to his mother as wedding gift. He stated that although he did sign the consent to support the application, he did not consent to receiving just a single half (1/2) acre, adding that he was not properly advised. He just signed the document without discussing the distribution. He alleged that he was rushed into signing the document, and that if he knew what it contained he would not even attended the meeting. On Barbara Wambui, he stated that she was a grandchild of the deceased just like himself and that she was entitled to take the share that was due to her dead mother.

37. Susan Kamau Kihara testified next. She said she was the widow of Kihara, who died on 24th December 1991. They had married in 1989, long after the deceased had died and therefore she did not have opportunity to meet him, although she did meet her mother-in-law, Rith Damaris. She said she and her husband were blessed with one child, Angela Wambui, whose age she put at twenty-four (24) years as at the date of the testimony. It is the daughter, in her capacity as the granddaughter of the deceased who was allocated various shares from the estate. It is proposed that she gets 250 acres out of Muthera Farm, thirty (30) acres from Ehothia Farm, one (1) acre out of the Closeburn Estate commercial plots. The witness proposed that her daughter’s name be replaced with hers. She testified that she was a stranger to the family as appertained to the period before she got married into it. She met Margaret Njeri Mbiyu in 2007 when she attended the first family meeting that she had been invited to. She was not formally introduced to her, but she gathered that she was a widow of the deceased. She used to be paid equally from the estate with her mother-in-law, Rith Damaris. She stated that she had no objection to Margaret Njeri benefitting from the estate. Of Eddah Wanjiru, she said she met her for the first time in 2007 at the meeting she had referred to earlier. She was not introduced to her, but she learnt that she was a widow of the deceased. She was not introduced to both of them but she figured out from what was happening at the meeting that they were widows of the deceased. She stated that she resided at Closeburn Estate since 1989 when she was married. It was at that property that she found the second house residing; that is to say her mother-in-law, Rith Damaris, David Waiganjo and his family, and Isaac Njuno and his family. She confirmed that the said families still reside there, including Barbara Wambui who has a home and a farm on the land. She prayed that should the court consider giving her a portion of Closeburn Estate she would be happy if the same included where she currently resides, and the same should apply to the other members of the family. She stated that she was paid Kshs. 12, 000, 000. 00 out of the purchase price of Kshs. 575, 000, 000. 00 from the sale of two hundred and ninety one (291) acres out of Closeburn Estate. She stated that she was not invited to approve the payments and she signed to receive the money as the signing was condition precedent to receiving the money. She stated that she was not invited to approve any of the sales of estate property which took place during the time she was married into the family. She was never party to any of the discussions that led up to the decisions to sell property or to distribute the proceeds of sale. The mode of distribution was usually agreed upon between the estate’s lawyers and the administrators, and the distribution of the proceeds of sale between administrators and the beneficiaries was not always equal. She added that she was not satisfied with the disparities. On the portion of Thimbigua Farm allegedly sold Tangulizi Ventures Ltd by Barbara Wambui, she said that she had no objection to the said portion being given to Barbara Wambui.

38. The next in line was Esther Njeri Gitau. She testified on behalf of the interested party called Impulse Developers Ltd. She described herself as a director of the said company effective from 2008. She had previously joined the company as a manager in 2003. She was also a director of Trento (K) Ltd. She explained that Impulse Developers Ltd had been incorporated in 2002 as Impulse Development Co. Ltd, changing its name in 2003. She testified that the company began negotiations in 2005 over the purchase of LR No. 8669/3 Mau Narok, conceding that she did not take part in the negotiations as she was then not a director of the company but participated only in the making of the necessary payments.. she stated that she did not know who negotiated for the company. She stated that it was the company which paid the sum of Kshs. 6, 400, 000. 00 to settle the estate’s indebtedness to SFT. The cheques were allegedly raise in June and July 2005 and given to Lennah Wanjiku Koinange. SFT issued receipts in the name of Lennah Wanjiku Koinange. She mentioned that by the time the sale agreement was signed 26th October 2005 leave had been obtained from court on 26th October 2005 for the transaction. She mentioned that the court order was not specific to Impulse Developers Ltd nor Impulse Development Co. Ltd. She conceded that the sale agreement was signed by Impulse Development Co. Ltd. According to Clause 4 of the agreement, the execution of the agreement was to precede the obtaining of the court order as the court was to be approached on the basis of the sale agreement. The company paid a deposit of Kshs. 21, 480, 000. 00 on the sale of the farm through the estate’s lawyers, Messrs. Waweru Gatonye & Company, Advocates. The cheque number 017620 dated 19th October 2005 was drawn on Charterhouse Bank and was forwarded to Messrs. Waweru Gatonye & Company, Advocates by Messrs. J M Njage, Advocate. She denied that there was another cheque of Kshs. 17, 480, 000. 00 number 017620 drawn on the same account. She could not explain why the documents drawn by the company’s advocates talked of a balance of Kshs. 193, 000, 000. 00. Special condition number 1 stated the completion date to be thirty (30) days from the date of execution and made time of the essence. The completion date was to expire on 25th November 2005, but the balance of the purchase price was not paid as some of the beneficiaries went to court and frustrated the process by challenging the transaction. The applications challenging the sale were by different persons and were dated 7th December 2005, 19th May 2006 and 23rd May 2006. She conceded that none of the applications were filed before expiry of the completion date, but still insisted that the family members frustrated the sale for they obtained many orders at the time. She cited an order made on 24th May 2006, six (6) months after the completion date, which had directed maintenance of the status quo. They filed a notice of appeal, but later withdrew the same. She said that they were waiting to be able to pay the full purchase price as they were pursuing loans from the Charterhouse Bank and the Cooperative Bank. The witness explained that the balance of the purchase price was not paid as Charterhouse Bank went down before it could release the balance of the purchase price. Negotiations were then commenced with the Cooperative Bank. She conceded that the company did not have the balance of the purchase price, but insisted that it was still willing to pay the balance. She denied that the attempt to sell the property to the government was intended to raise the said balance and that the company began to look for the money after the completion date. She further denied that the company attempted to sell the property to the government before completing payment of the purchase price. She added that nothing happened in the period within the 30 days completion date which would have prevented them from paying the full purchase price. She mentioned that the company filed a suit, being HCCC No. 648 of 2006, and an application dated 3rd December 2009 within the said suit where it sought possession of the property although the balance of the purchase price had not been paid nor deposited in court. The administrators counterclaimed on grounds of breach of contract for rescission of the contract, forfeiture of the deposit and cancellation of the transfer. The suit was subsequently withdrawn on 22nd December 2009. The property was transferred to the company on 22nd May 2006 apparently to satisfy a condition from the Cooperative Bank to facilitate its access to credit. The court orders that followed made it impossible for the company to satisfy the conditions imposed by the bank and they were therefore unable to access the funds to complete the sale. Prior to that, the administrators had on 26th October 2005 executed an assignment in favour the company, although by that date the balance of the purchase price had not been paid. She mentioned that the company applied for consent to charge the same for Kshs. 113, 000, 000. 00. She stated that there was a consent of the Land Control Board for the transfer of the property, whose copy she had never seen, but she was sure that their lawyer knew where it was. When confronted with a letter dated 30th May 2005 confirming that the LCB did not meet to consider consenting to the transfer, she insisted that consent had been granted by the LCB for transfer of the land. She said that she was unaware that the company’s previous lawyers had argued that the consent to transfer was not necessary. She conceded that the transfer document was stamped for collection of stamp duty after the transfer, suggesting that the transfer was done before stamp duty was paid. The purchase price was also understated, as Kshs. 10, 487, 000. 00 instead of Kshs. 214, 800, 000. 00. She could not immediately explain the difference and could not say whether the same was meant to deny government its revenue. On re-examination, however, she explained that the sum of Kshs. 10, 487, 000. 00 was consideration payable to the SFT and not to the administrators. Value was later raised to Kshs. 210, 000, 000. 00 and duty was to be paid on that sum. Consent to transfer was between the company and SFT and consent of LCB was not required. It was her position that the administrators had not terminated the sale after the expiry of the 30 days, and had even accepted undertakings made by the bank long after the completion date had expired. She stated that the property was never in the name of the deceased and that it was the administrators who had authorized SFT to transfer it directly to the company. She asserted that Muthera Farm did not form part of the estate of the deceased, and the company was still willing to pay the balance of the purchase price, including interest.

39. The next witness was Raphael Mpoe. He testified largely on what was said to be the alleged subdivision of Muthera Farm by a section of the family. He talked of beacons that he saw on the land and of the photographs that he took of the said beacons.

40. He was followed by Mary Njoki Karuga, the former wife of Charles Karuga Koinange, the brother of the deceased. She was called specifically to testify on the relationship between her former husband and Margaret Njeri Mbiyu. She testified generally on the family of the deceased, in terms of the women in his life and his children, and specifically on the matters that she had been called to shed light on. She, however, did not complete her testimony for disappeared midstream after Mr. Gikandi for Margaret Njeri Mbiyu adopted a line of questioning that was contested by counsel for some of the parties. I reserved the matter for ruling, but the witness did not come back. I did not get to rule on the matter due to her absence, instead I ordered that her testimony be expunged from the record.

41. The next witness was Patrick Mungai Kanyagia, who testified on behalf of Tangulizi Ventures Ltd. He described himself as a shareholder and director of the company. He testified that the company had entered into a sale agreement with Barbara Wambui for sale of twenty-two (22) acres of Kiambaa/Thimbigua/5416, which later revised to four and half (4 ½) acres. They paid Kshs. 40, 500, 000. 00 for the land. It turned that Barbara was using forged documents and the sale was therefore challenged in court. a consent was subsequently entered into between the company’s advocates and lawyers for the estate in the terms comprised in a document dated 25th July 2011, to the effect that the company would get whatever was due to Barbara Wambui to a maximum of up to (4 ½) acres from Kiambaa/Thimbigua/819. The company was asking the court to facilitate enforcement of the said consent order. He stated that the company took possession of what was sold to it and fenced it off. He denied forcing out the farmers who had been in occupation before the sale and destroying Napier grass that was on the land. He said he was unaware that Paul Mbatia had been in possession of the portion that was sold to the company. He stated that before the purchase, he had visited the land and found no one in occupation. He had noted a grave on it, but the same was not on the portion the company was interested in. the company did a search which revealed that the property was registered in the name of Barbara Wambui. He stated that he was not familiar with the history of the land, nor was he aware that there was a grant made to any one in respect of the estate of the person who was the actual registered owner of the property.

42. Barbara Wambui Koinange testified next. She explained that she was the only child of Florence Wanjiku Mbiyu, a daughter of Rith Damaris Mbiyu and Peter Mbiyu Koinange. She said that her mother passed away after her birth and she was raised by her grandmother alongside Isaac, David, Solomon, Geoffrey and Lennah. During the deceased’s lifetime she lived at Ruiru with the grandmother, moving to Closeburn after he died. She proposed that all the rightful heirs of the deceased be given a share of the estate in equal terms, getting a share in every asset of the estate. She said all the children of the deceased should get a share of the estate equally, whether male or female, dead or alive, adding that the grandchildren of the deceased should get their dead parents full share. She insisted that there should be no discrimination. She stated that other factors ought to be taken into account – such as lifetime gifts and the current occupation of the property. All the interests should be balanced, arguing that there was no balance in the proposals in the application before court. She pointed out that Stella Loise Njeri, a grandchild of the deceased by one of his daughters in the first house, had been left out. She complained that there was no fairness in the partial distribution as the money realized from sales would be distributed unevenly using a criterion that was unknown to her. She was of the view that in the final distribution, she should be compensated for such discrepancies. On Thimbigua, she stated that she was entitled to her mother’s share in that property, but evinced her willingness to give up (4½) acres of her share to Tangulizi Ventures Ltd. She stated that the Thimbigua property was big enough for everyone to get a share. She referred to orders by Maraga J. nullifying her transactions with Tangulizi Ventures Ltd, cancelling all the titles created out of the mother title and binding the administrators to give (4 ½) acres to Tangulizi Ventures Ltd. She testified that she was prosecuted for the affair in Kiambu CMCCRC No. 468 of 2011, which was still pending at the time of her testimony. She explained that she saw the original title which was in the name of the deceased and in the possession of her uncle Isaac Njunu. It indicated the property to be one hundred (100) acres. The second house was doing badly financially at the time, and so Isaac, David Waiganjo and the witness decided to raise funds using the title. The property was transferred to her name in 2009. She said that Isaac and David were actively involved in the affair. The purchase price of Kshs. 40, 500, 000. 00 was shared among members of the second house, debts were settled and the surveyor who facilitated the subdivision of the land was paid. One of the creditors was a shylock from whom they borrowed money to finance the whole business. After the consent order of 26th July 2011, a sum of Kshs. 20, 000, 000. 00 that was being held by the court was released to her, but she did not share it with the rest of the family. She denied that she would benefit twice if she were to get a share of the Thimbigua property as she would not be getting a share of the land and Kshs. 40, 500, 000. 00. On the status of Margaret Njeri, she stated that she used to see her come to Ruiru to visit her grandmother, and they used to call her ‘mum.’ As to whether she was a wife of the deceased, the witness stated that she did not know. On Eddah Wanjiru, she testified that she did not know her much as she never used to visit them and she only met her at family meetings after the deceased died. She first saw her for the first time in court after the deceased’s death. On Lennah Wanjiku, she stated that she was a daughter of the deceased , and that she resembled him and spoke like he used to, adding that before the proceedings on distribution, no one had question her paternity. She stated that the deceased used to visit them at Ruiru and they – David Waiganjo, Lennah Wanjiku and the witness – would visit him at Waihuthia Farm. He treated Lennah as his child, and treated all of them equally. He used to provide for them all – paying their school fees, buying them clothes, and generally taking up parental responsibility over them. She added that she did not reside at Closeburn, although she had a farm there, measuring nine (9) or so acres. She stated that she had businesses running in four (4) containers placed at Closeburn. She had rented out three (3) of the containers to outsiders who were her tenants. She said Closeburn had not been subdivided, but conceded that she had leased seventeen (17) spaces of the property to tenants.

43. Sebastian Omboto testified next. He alleged to be an investigator hired by the firm of Messrs. Nyaberi & Co. Advocates to conduct enquiries on Margert Njeri and Eddah Wanjiru and their children, and some of the documents that the two had placed before the court as exhibits.

44. The next witness was from the office of the Registrar of Companies. He was Francis Kiago Ndirangu, a state counsel holding the position of Assistant Registrar of Companies. He was called to testify on the current shareholding on companies where the deceased was said to hold shares. On the Koinange Investments and Development Ltd, he said that he was only able to access a temporary file as the original file was said to be missing. From what he was able to get, he noted that the company was incorporated on 22nd December 1971, where a Mr. Parker held one (1) share while the other share was held by the deceased. He found three (3) returns on the record. The one for 2009 indicated that the estate of Mbiyu Koinange held 32, 000 shares, the estate of Madatally Manji held 7, 500 share, Salim Manji 7, 500 shares and the estate of Charles K. Koinange held 3, 000 shares. The returns for 2010 and 2011 carried similar information. He was not able to get the original file for Koira Ltd, but had had access to a scanned image of the file. According to the record the company was registered on 22nd March 1977. The original shareholders were the deceased and a Mr. Rana, holding three (3) shares and one (1) share, respectively. The returns for 2007 and 2010 indicated the shareholding of the company to be 948, 480 shares to the deceased, 74 shares to Masoud Mohamedali Rana, 237, 120 shares to estate of Charles Karuga Koinange and 592, 726 share to Rana Estates Ltd. The witness had the original file for Kenyattu Ltd. The full name for the company was Kenyattu Trading Company Limited. It was incorporated on 30th December 1961. The deceased was not among the original shareholders, but several share allotments were later made to him and by 1973 he held 20 shares in the company. According to the last returns on record, of 2009, the deceased was not listed among the shareholders. The deceased’s name was said to have last appeared in the 1995 returns where he was said to have held 470 shares. As per the 1979 returns the deceased held 508 shares. On Gatatha Farmer Company Limited, he said that the same was incorporated on 10th March 1972 as a public company. There were several allotments to the deceased. as of 8th March 1977, the deceased held 75 shares in the company, and as of 31st March 1980 he held 165 shares. The Ocean View Beach Hotel Ltd was said to have been incorporated on 12th August 1967, as Ocean View Beach Cottages Ltd. It changed to its current name on 3rd July 1971the deceased did not have any shares in the company at incorporation, but subsequently various shares were allotted to him. According to the 1979 returns, the deceased held 11, 000 shares, which were transferred on 14th May 1988 by the executor of the estate of the deceased to Eddah Wanjiru Koinange. The executor was not named, but they held the shares prior to 1988. The witness testified that he had not been able to get the files for Limuru Dairy Company Ltd, ICDC Investments Ltd (now known as Centum Ltd), Danson Macharia Sawmills Limited, BAT Ltd and Mbo-I-Kamiti Ltd, he stated that ICDC Investments Ltd, Mbo-I-Kamiti Ltd and BAT Ltd were public companies and information on the shareholding by the deceased should have been sought from their respective company secretaries.

45. Edwin Munoko Wafula testified next. He was a Senior Registrar of Titles. He came to testify on the landed property said to be registered in the name of the deceased. He stated that he had been able to access the records relating to LR No. 151/3, otherwise known as Ihuthia Farm, as of 4th April 2014 the registered owner was the deceased. The property measured 660 acres. The only encumbrance on it was a charge by the Commissioner for Income Tax for Kshs. 300, 000. 00. He testified that he had traced the records for Nakuru Block 8/40, 41 and 42. He said that each of the parcels had three (3) separate records, and the registrar was proposing to summon the purported proprietors whose names he did not have. He stated that Dagoretti/Karandini/44 was registered in the name of Harun Wakamere Mbuthia as original owner. He had also accessed records to Msa/Block XXI plots 151 and 498. The two plots were registered in the name of Amjad Investments Ltd. They were originally registered in favour of Ali bin Salim El-Busaidy. The records for Kiambaa/Waguthu/2324 measured 1. 214 hectares and was registered on 29th October 2007 in the name of Wanjiru Mbiyu. It was partitioned from Kiambaa/Waguthu/1021. There was a caution by David Njunu Koinange registered on 27th August 2008. He could not tell from the record whether the property originally belonged to the deceased. On LR No. 3699/1, he testified that the LR No. provided no longer existed. The same was surrendered in exchange for a new grant. Two (2) LR Nos. were surrendered, being LR No. 3700 measuring 101 acres and LR No. 3699/1 measuring 19 acres. The new LR No. is 8514 with grant number IR 12025. The new grant was issued to Kimotu Tea Company Ltd. The tea company subsequently subdivided the property into three parcels – LR Nos. 8514/1 - IR 83755, LR No. 8514/2 - IR 83758, LR No. 8514/3 - IR 83757. He said that he did check on who was the original owner of LR No. 3699/1. LR No. 3699/1 was surrendered in 1956, and the new grants were issued in 1964. He testified that LR No. 3561/2 measured 252 acres and was formerly registered in the name of New Rima Kiambaa Cooperative Society Ltd. It was then registered to Wilfred Koinange. It was subsequently subdivided into two (2) parcels of land that were transferred to a company called Four Ten Investments Ltd, which remained the registered proprietor right up to the date of the witness’s testimony. It was noted on the register that the administrators of the estate of Mbiyu Koinange were Rith Damaris Mbiyu, David Njunu Mbiyu, Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu. It was noted too that there was a proposed subdivision of the property. LR No. 3688/4 measured 31. 169 hectares and was transferred to the deceased with two other parcels. LR No. 209/9099 was registered in the name of Koinange Investments and Developments Ltd. LR No. 22/1 (otherwise known as Closeburn Estate)had been subdivided into plots numbers 215, 301, 359 and 362 that were yet to be registered. He stated that he had seen the names of Mbiyu Koinange and Enclaire Management Ltd in the register. He stated that he had not yet obtained records for LR Nos. 123/13, 152 Mombasa, 209/8868 Lunga Lunga, 216 Ikinu, 3561/2, 3688/1, 3688/3, 8669/3 and Kiambaa/Thimbigua/819. He stated that no records existed in respect of LR No. 4709/1, while Block 252/330/1165 and Dagoretti/Karandini/4/1 did not exist.

46. The last witness was Geoffrey Swanya Birundu. He was a Principal Land Registration Officer. He gave additional evidence on the immovable assets. On the property along Lunga Lunga Road Nairobi, he stated that the same is LR No. 209/8868 IR No. 35231, measuring 0. 8768 of a hectare or thereabout. He stated that the deceased was registered as owner on 6th March 1981. There is a notification of charge by the Commissioner of Income Tax in respect of Kshs. 300, 000. 00 tax arrears. The notification was lodged in February 1984. On LR No. 151/1 – 24, he testified that the parent title was LR No. 151/3 registered under the now repealed Government Lands Act in the name of the deceased. It was subsequently subdivided into 24 subplots which were transferred out. He could not tell when the transfers of the subplots were done, but the record indicated the deceased as the transferee. Only five (5) acres were taken out and therefore the rest should be in the name of the deceased. The remaining parcel was LR No. 151/3 measuring 645 acres registered in the name of Mbiyu Koinange. There was a caution on record in favour of the Commissioner of Income Tax for Kshs. 300, 000. 00 registered on 8th February 1984. The details were in Volume N50 Folio 22 File 17/78. On Kiambaa/Waguthu/2324, he stated that the same measured 1. 214 hectares and was registered in the name of Wanjiru Mbiyu on 29th October 2007 as the first proprietor. There a caution on record by David Njunu lodged on 27th August 2008. He explained that the parent title was Kiambaa/Waguthu/533 measuring 14. 67 hectares in the name of Koinange Mbiyu. It was transferred in 1974 from Koinange Mbiyu to Mariamu Wambui through succession process. In 1988 it was subdivided through another succession process and transferred to Charles Karuga Koinange of the house of Mariamu Wambui, Wilfred Mbiyu Koinange of the house of Elizabeth Gathoni, Edwin Mbiyu Koinange of the house of Phylis Wambui, Noah Karuga Koinange of the house of Joyce Kagendo and Joseph Karuga Koinange for the house of Julia Njeri. The old title was closed and new numbers issued. The new given for the property issued in the name of Charles Karuga Koinange for the house of Mariamu Wambui was Kiambaa/Waguthu/1021, measuring six (6) acres or thereabout and was registered on 28th October 1988. Kiambaa/Waguthu/1021 was partitioned on 29th October 2007 into equal parcel numbers Kiambaa/Waguthu/2323 and 2324. Parcel Kiambaa/Waguthu/2324 went to Eddah Wanjiru Mbiyu, while Kiambaa/Waguthu/2323 went to Ernest Ngugi Karuga, title deeds issued and the old title closed. He reiterated that Kiambaa/Waguthu/2324 was never in the name registered in the name of Mbiyu Koinange. On Msa Block/XXI/151, he indicated that the same measured 0. 20666 acres and was registered in the name of Ali bin Salim El-Busaidy. The date of registration was not clear. It was transferred on 24th December 2012 to Amjad Investments Ltd and a title deed issued. There were various restrictions on record, including a court order. The record for Msa Block/XXI/498 was not complete for what was available started at Entry 4, a caution lodged by Masoud Mohamed Rana of Koira Ltd on 4th July 2012. The caution was subsequently withdrawn and the property transferred to Amjad Investments Ltd with the title deed being issued to the company on 24th December 2012. There were restrictions and a court order on record. The witness indicated that he was unable to trace the file for Msa Block/XXI/152.

47. At the conclusion of the trial, I directed the parties to file and serve their respective written submissions. The parties complied with these directions. The first submissions to be filed were for Lennah Catherine Koinange, which were lodged in court on 18th November 2014. She also filed supplementary submissions on 10th February 2014. The next in line were the lodged by Tangulizi Ventures Limited on 15th December 2014. The submissions lodged on behalf of the administrators and beneficiaries represented by Messrs. Nyaberi & Company, Advocates, were filed on 17thDecember 2014, while those by David Waiganjo Koinange were filed on 19th January 2015. The interested party called Impulse Developers Company Limited lodged its submissions in court on 10th February 2015. Joyce Njeri Njunu filed her written submissions, dated 6th February 2015, on 10th February 2015, simultaneously with Margaret Njeri Mbiyu. On 11th February 2015 written submissions, of even date, were filed for Stephen and Stella Kibara. On the same date, submissions were lodged at the registry for David Njunu Koinange and Stella Loise Njeri Mbiyu. Sylvia Maryanne Wambui Mbiyu written submissions are dated 17th February 2015 and were filed herein on 18th February 2015. Margaret Njeri also filed a list of authorities dated 10th February 2015.

48. I have carefully perused through the written submissions filed by the parties, together with the copies of the authorities attached. I shall not reproduce the arguments made in the said submissions in the body of the judgment. I have taken time to consider all the facts as adduced in the various affidavits filed in the matter as well as the oral evidence recorded from the parties, as well as all authorities cited.

49. The deceased herein died on 3rd September 1981. That was some two (2) months after the Law of Succession Act, Cap 160 Laws of Kenya, commenced. Succession to his estate therefore became subject to the said law by virtue of Section 2(1) thereof, which states as follows:-

“2(1) Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the Law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”

50. The law of succession concerns the estate of a dead person, and it deals with how such property is handled with the ultimate objective of having the same distributed amongst those who are legally entitled to it. Before distribution therefore, the court should be concerned about identifying the property available for distribution. Once the property is identified, what should follow is the determination of the persons who are entitled to the property or a share of it. After the beneficiaries have been established, the court then works out the mode of distributing the property amongst them, in accord of course with the provisions of the Law of Succession Act. I shall deal with the three matters sequentially.

51. The property that the deceased died possessed of was set out in paragraph 5, hereinabove. However, from the record, it transpires that some of the assets have since been disposed of. From the oral evidence some of the beneficiaries alleged that some of the assets which made up the estate of the deceased as at the date of his death had not been included in the schedule of assets. The assets that are alleged to have been sold include LR No. 8669/3 (otherwise known as Muthera Farm), the building block on Biashara Street, the 14 blocks of go-downs in Mombasa, the second row beach plots and portions of Closeburn Estate. All these assets were disposed of following court orders obtained with the specific objective of facilitating sale to raise money allegedly to settle estate debts and for the maintenance of family members. The Mombasa assets were sold vide an order of Githinji J. made on 9th February 1995. Githinji j. allowed the disposal of 260 acres from LR N0. 207/22 Closeburn Estate in orders made on 19th March 2001 and 2nd August 2002. The sale of 291 acres from LR N0. 207/22 Closeburn Estate was permitted by Koome J. in an order made on 30th November 2005. There are documents on records accounting for the said sales and the disposal of the proceeds of the sales.

52. From the recorded evidence the status of some of the assets is unknown or is not clear. The court will have to determine whether such assets form part of the estate of the deceased. The assets whose status is unclear include the Nakuru plots (80/44, 80/40 and 80/42), Kiambaa/Waguthu/2324, the shares in Ocean View Beach Hotel Ltd, the shares in Oceanic Hotel Ltd and Thirstine Farm.

53. During the course of the oral hearing, some of the witnesses alleged that there were assets omitted from the schedule. Eddah Wanjiru for example, talked about a Githunguri property, Dagoretti/Karandini/44 – 1 and Nyahururu farm. Paul Mbatia and George Kihara alleged that the deceased owned property at Kileleshwa, some property off Mombasa Road (behind Firestone) and in Nyahururu. George Kihara and Lennah Wanjiku also mentioned that the deceased also owned a plot behind Muthaiga Police Station. Lennah Wanjiku was cross-examined extensively on a plot at Lavington.

54. The assets which are therefore available for distribution without any issues include LR. No. 22 (Closeburn Estate) (178 acres), LR No. 151/3 (Ehothia Farm) (640 acres), LR No. 150/6 (3688/1 and 7) (Waihothia Farm) (198 acres), Thimbigua/Waguthu/1677 (98 acres), LR No. 916 (Ikinu Farm) (16 acres), LR No. 1232/13 (Githunguri) (16 acres) and LR No. 209/8868 (Lunga Lunga Road). There are also the plots at Kiambaa Kawaida and Kanunga, and the shares in Mbo-I-Kamiti Farmers Ltd, Gatatha Farmers Ltd, BAT Ltd, Kenyattu Ltd, Koinange Investment and Development Ltd, Danson Macharia Sawmills Co. Ltd, Limuru Dairy Ltd and ICDC Investments Ltd.

55. Regarding the building block on Biashara Street, the 14 blocks of go-downs in Mombasa, the second row beach plots and portions of Closeburn Estate; disposal of these assets was sanctioned by the court. The proceeds of sale were thereafter shared out or utilized one way or the other. From the oral evidence it would appear that the beneficiaries are dissatisfied with the said sales, either because they did not benefit from them or they did not have clear information on why the assets were disposed of and what the proceeds of the sales were applied to. Whatever the case, these assets no longer form part of the estate of the deceased, and they are therefore not available for distribution.

56. Parties asked for accounts regarding the disposal of the said assets, but I have noted from the record that that issue came up shortly after the said sale and it wsa directed that accounts be filed by those concerned, and there was compliance. I do not think it necessary for me to order a fresh account. Whether the account rendered then was adequate or not is a different matter. Parties are at liberty to peruse the court file, study the account on record and thereafter decide whether to pursue the matter further or not.

57. Although some of the beneficiaries mentioned properties that they claimed belonged to the estate, and invited me to conduct an inquiry as to them, no document was placed before me as evidence that these properties existed and were in the name of the deceased. I am referring to the Kileleshwa property, the Nyahururu farm, the properties behind Muthaiga Police Station and the property behind Firestone, off Mombasa Road. There is no basis at all upon which I can determine whether these properties ever existed, or were held by the deceased. I cannot therefore make orders of any kind on their disposal.

58. On Dagoretti/Karandini/44-1, David Waiganjo alleged that there existed an asset in the Karandini area of Dagoretti. He however did not confirm whether the land reference number cited was the correct one. He testified that the deceased did not hold a title document for it save for a letter of allotment. When the same was advertised for sale by the City Council of Nairobi to settle outstanding rates, he negotiated with the person who intended to buy the property for the difference between the value of the property and the rates outstanding. He was paid the difference. A lands officer, Edwin Munoko Wafula, however, testified that Dagoretti/Karandini/44-1 did not exist in their records. The property of the nearest description to that provided was Dagoretti/Karandini/44, which was never registered in the name of the deceased, and its original owner was a person who was unconnected to the estate. Other than what David Waiganjo said in court, no document was placed before me as proof that the property formed part of the estate of the deceased. He did not himself avail a copy of the alleged allotment letter before court for scrutiny. I am unable in absence of proof to hold one way or the other that the property belonged to the deceased.

59. I note that it was one of the administrators, Margaret Njeri Mbiyu, who listed the property as forming part of the estate of the deceased, yet she did not place before the court any document as proof that it belonged to the deceased. It has also not been explained why, if the administrators were aware that there was an allotment letter issued on the property in the name of the deceased, no steps were taken to perfect the title and to protect it from disposal by the City Council of Nairobi.

60. The same applies to the Lavington property. The issue of Lavington property was raised again by Margaret Njeri Mbiyu through counsel during cross-examination of Lennah Wanjiku Koinange, who was accused of intermeddling with the asset belonging to the estate and of appropriating it to herself. Margaret Njeri did not place before court any documentary proof of the existence of the said property. It was left to Lennah Wanjiku to explain that the property in the Muthangari area of Lavington did indeed exist, but was not registered in the name of the deceased, He was said to have held an allotment letter to it but he did not fulfill the conditions set out in the letter to facilitate the processing of the title to his name, and ultimately the property reverted to the state. Various persons, including Lennah Wanjiku and other family members, applied for it to be allotted to them. It was eventually allotted to her, she paid the necessary dues and the property was registered in her name. Curiously, Lennah Wanjiku herself did not place any documents before court to support her case.

61. He who alleges must prove. The person who first comes to court and asserts a position must prove it. That legal position was underlined by Amin J. in Koinange & 13 others v. Koinange (2008) 1 KLR (G&F) where it was held that whoever asserts a fact is under an obligation to prove it in order to succeed. Margaret Njeri alleged that these two assets belonged to the estate; it was incumbent upon her to prove that the assets formed part of the estate. The assets were located within Nairobi, and no doubt the same must have been backed by documentary evidence of ownership. All she needed to do was to place before court documents pointing to ownership of the said assets by the deceased, upon which then David Waiganjo and Lennah Wanjiku would have been called upon to account for the manner that they allege they handled the said assets. As there is no evidence to contradict what the two told the court, I can only conclude that said assets did not belong to the deceased for he only held allotment letters to them and he did not fulfill the conditions set out in the said letters of allotment.

62. The legal position on the legal status of letters of allotment and title to property has been stated in a number of cases. The Court of Appeal, for example, in Dr. Joseph N K arap Ng’ok vs. Justice Moijo ole Keiwua and four othersCivil Application No. Nai 60 of 1997 (27/97 UR) stated that it was trite that title to landed property could only come into existence after issuance of a letter of allotment, meeting the conditions set out in such letter and actual issuance thereafter of the title document pursuant to the provisions in the law under which the property is held. Then there was Jaj Super Power Cash and Carry Limited vs. City Council and others Nairobi Civil Appeal No. 111 of 2002 court of Appeal (unreported), it was held that a letter of allotment conferred a temporary right that becomes subservient to a registered interest in the land. In Wreck Motor Enterprises vs. The Commissioner of Lands and others Nairobi Civil Appeal No. 71 of 1997 Court of Appeal (unreported) where the court said –

‘In our view the endorsement or the appending of his signature by HE the President on the applications to the Commission of Lands for the suit plot or for that matter any other unalienated government land is not sufficient to grant title over any land to anyone. HE the President only approves the application for consideration by the Commissioner of Lands for allocation of any such property. It does not amount to the applicants obtaining title to such lands. Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actualissuance thereafter of title document pursuant to provisions held.’

63. The position stated by the Court of Appeal in Dr. Joseph N K arap Ng’ok vs. Justice Moijo ole Keiwua and four others, Jaj Super Power Cash and Carry Limited vs. City Council and othersandWreck Motor Enterprises vs. The Commissioner of Lands and otherswas followed with approval by the High Court in a number of cases. In Stephen Mburu and four others vs. Comat Merchants Limited and another (2012) eKLR, for example, Kimondo J stated that from a legal standpoint, a letter of allotment was not a title to property, it was transient was often an offer to take property. See also Disa Enterprises Ltd vs. Kenya Power and Lighting Co. Ltd (2013) eKLR, Evans Kafusi Mcharo vs. The Permanent Secretary, Ministry of Roads Public Works and Housing and two others(2013) eKLR and Magutu Electrical Services Limited vs. Haki Imetimizwa Company Limited and three others (2012) eKLR, among others.

64. The story about Kiambaa/Waguthu/2324, otherwise known as Kiambaa Kibichiku, is that the same was inheritance due to the deceased from his father’s estate. He was entitled to three (3) acres of the ancestral land in Kiambaa. The property ended up with Eddah Wanjiru. At the trial she conceded that the property was an inheritance due to the deceased, which was then gifted to her by the clan. She asserted that the same was not estate property and was therefore not available for distribution. According to the testimony of Geoffrey Swanya Birundu, and the records he presented from the lands registration office, the land in question was initially part of Kiambaa/Waguthu/533 which belonged to the father of the deceased, Senior Chief Koinange. It passed by way of succession to the Senior Chief’s five (5) houses. The share due to the house of the deceased’s mother, Mariamu, was divided into two (2) equal shares; one share went to Eddah Wanjiru Mbiyu and the other to Ernest Ngugi Karuga, a son of Charles Karuga Koinange, a brother of the deceased.

65. The subdivision of Kiambaa/Waguthu/533 which culminated in the creation of Kiambaa/Waguthu/2324 was founded on a court order made in the succession cause, Nairobi High Court Civil Suit No. 66 of 1984, to the estate of the late Senior Chief Koinange Mbiyu. A full text of the judgment in that cause is reported in Koinange & 13 others v. Koinange (2008) 1 KLR (G&F) 698. The relevant portion is at page 721 where Amin J. said:–

‘Certain lands remained in the name of the deceased at the time of his death, according to my finding. He was seized of these lands and his estate was therefore to be distributed amongst his heirs according to the principles of Gikuyu Customary Law (supra). This was not done. I therefore find and declare that the land situate at Wagutu Registration No. 533 which is 36. 25 acres was transferred by mistake, fraud or error and registered in the name of Mariamu Wambui Koinange subsequent to the death of the senior chief. She had no right to this preferential treatment. The defendant, I note, is a direct beneficiary of this registration. I also find that the deceased’s lands were under the defendant’s control. This registration promotes further the existing imbalance amongst the houses of thispolygamous household. I am also satisfied, from the whole of the evidence that the said land and the house are the burial grounds where the senior chief and two of his wives now lie. It is more of a family shrine.

As the present owner is not entitled to this property on her own account or on account of her house I declare as follows and order the registrar to amend and rectify the appropriate register accordingly:

1. An area of 6. 25 acre of the house and grounds to be demarcated and to be held in common trust as a shrine. The trustee of the shrine shall be the eldest sons of each house.

2. The remainder of the land is to be divided into five equal shares and is awarded to each of the houses:

1. Mariamu Wambui

2. Sons of Julia Njeri

3. Joyce Kagendo

4. Phylis Wambui

5. Elizabeth Gathoni.

3. Any of the houses wishing to dispose of its share for consideration is at liberty to do so on a mutually agreed consider9ation or on terms of valuation prior to registration of the new title.’

66. It is common ground from the judgment in Koinange & 13 others v. Koinange that the said asset was the deceased’s entitlement from his father’s estate. His father’s estate was distributed after his death, and it should therefore have devolved upon his estate. If the devolution had happened during his lifetime, he would have had the option to give it to whoever he wished. Since it devolved after his death, it could only be dealt with as part of his estate. Nobody, including his clan, had a right to make a gift of it to anyone. There was therefore no basis in law for the property to have passed to Eddah Wanjiru. The property forms part of the estate of the deceased, and it should be available for distribution.

67. There is unanimity in the family that the Thirstine Estate was bought by the deceased, although there is little documentary trail of the transaction save for a few letters. A copy of the title of the property was not availed and no one appeared to be sure of where it was, except that it was speculated that was held by the Co-operative Bank. It was testified that after the deceased bought the property, he formed a cooperative society whose members were himself, his brother, Charles Karuga Koinange, and their children. He did so so as to access loan facilities from the Cooperative Bank. It is not clear whether that involved having the property transferred from the name of the deceased or not. It is not even clear whether the property was ever in the name of the deceased.

68. The witness from the lands registry confirmed that the Thirstine property, whose registration details are LR No. 3561/2, formerly registered in the name of New Rima Kiambaa Cooperative Society Ltd, had been transferred to the name of Wilfred Koinange, was subsequently subdivided into two (2) parcels of land and transferred to a company called Four Ten Investments Ltd. The witness told the court that there was an endorsement on the register that the administrators of the estate of Mbiyu Koinange were Rith Damaris Mbiyu, David Njunu Mbiyu, Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu. That no doubt underlined the connection between the said property and the estate of the deceased.

69. From the recorded evidence it is plain that the property is currently under the control of the family of Dr. Wilfred Koinange. Paul Mbatia and George Kihara testified that the late Dr. Koinange manipulated the family after Mbiyu Koinange died and caused the property to come under his control after the cooperative society was dissolved. The witnesses alluded to a suit filed in respect of the property, which suit was unsuccessful. The pleadings and decisions in the said suit were not availed to the court, and therefore it was not made clear what the suit was about and what its outcome was so far as it related to the property in question.

70. From the material before me, it is my finding that the property comprised in Thirstine Estate originally belonged to the deceased, but it would appear that its ownership changed through various means and is currently in the name of a limited liability company. The circumstances under which the property changed hands must have been documented but the said documents, or evidence thereon, have not been placed before the court. I have therefore no material upon which I can order the reversion of the said property to the estate. The administrators of the estate should have endeavoured to recover the property by furnishing this court or another, in a separate suit, with material designed to convince it that the property changed hands either by mistake, fraud or error. The property is obviously not available for distribution until it is established that it changed ownership improperly.

71. On the Ocean View Beach Hotel and the Oceanic Hotel, it came out that these two assets were owned by limited liability companies in which the deceased was a shareholder. The two companies were the Ocean View Beach Hotel Ltd, where he held 11 000 shares; and the Oceanic Hotel Ltd, where he held 1 000 shares and where the Ocean View Beach Hotel Ltd was also a shareholder. The beneficiaries were concerned about the transfer of the deceased’s shares in the Ocean View Beach Ltd, numbering 11 000, from the name of the deceased to that of Eddah Wanjiru; and the disposal of the Oceanic Hotel. Eddah Wanjiru argues that the 11 000 shares in the Ocean View Hotel Ltd were transferred to her as a gift from the deceased, for he had named her as his next of kin in the papers held by the company. In legal language, it means that the deceased had nominated her as the person entitled to his shares in the event of his death. There is evidence on record that the purported existence of the alleged nomination was disclosed to the then administrators of the estate at a meeting held at the Ocean View Beach Hotel in the presence of the management of the Ocean View Beach Hotel Ltd and Mr. Pandya of Pandya & Talati, Advocates of Mombasa, who acted for the estate and the company at the time. That evidence was supported by the information placed before the court by the witness from the registry of companies, Mr. Francis Kiago Ndirangu. The beneficiaries appear to be questioning the alleged nomination.

72. A nomination is a devise for transferring property from a deceased person to a person nominated by him during his lifetime. It is a gift which takes effect upon death. It is designed to circumvent the succession process, and therefore the transmission of the property from the deceased to the nominee is not subjected to the succession process. It does not require a court process. The same is effected upon proof of the death of the nominator. Nominations are restricted. They do not apply to all classes of property. They are common with respect to pension schemes, insurance policies and shares from cooperative societies. If there was a valid nomination of the 11 000 shares by the deceased in favour of Eddah Wanjiru, there would have been no need for her to go to court to have the transfer of the shares effected. The transfer could be done upon proof that the nominator, Mbiyu Koinange, had died. There would have been no need to take the property through the succession cause.

73. The practice in Kenya is that the device of nomination is employed with respect to disposal of savings and investments in certain schemes. It is most common in cooperative societies, pension schemes and insurance policies. It is sanctioned by statute in all these cases. The Cooperative Societies Act, No. 12 of 1997, specifically provides, at section 39, for disposal of the shares or interest of a cooperator by way of nomination to take effect upon his death. Under section 111 of the Insurance Act, Cap 487, Laws of Kenya, the holder of a life policy may nominate the person or persons to whom the money secured by the policy should be paid to in the event of their death. With regard to pension schemes, nominations are not provided for in the body of the Retirement Benefits Act, No. 3 of 1997, but they are provided for in the subsidiary legislation, such as the Retirement Benefits (Individual Retirement Benefit Schemes) Regulations and the Retirement Benefits (Occupational Retirement Benefit Schemes) Regulations.

74. The investment comprised in shares in a limited liability company is governed by the Companies Act, Cap 486, Laws of Kenya. The main legislation does not provide for disposal of shares in a limited liability company by way of nomination, neither is it provided for under the Companies Rules. Such shares are transferable upon death by will or intestacy to the beneficiaries named in the testamentary instrument, where the deceased dies testate, and survivors of the deceased intestate shareholder, where he dies intestate. That is the effect of sections 75 to 87 of the Companies Act.

75. The shares in a cooperative society have more or less the same character and nature as shares in a limited liability company. If they can be disposed of by way of nomination, then shares in a limited liability company should be capable of disposal in a similar manner. However, nomination is a creature of statute. Transmission of shares in a liability company cannot therefore be done through the device of nomination unless there is statutory provision for it in the Companies Act. The provisions of the Companies Act only provide for transmission of shares in the event of death through the succession process, it is silent on transmission through nomination.

76. Some jurisdictions in the common law tradition have amended their Companies Acts to provide for transmission of shares in a limited liability company. In India, for example, nominations are provided for under section 72 of the Companies Act, 2013, where it is provided that where a nomination is made in accordance with the provisions of the 2013 Act, on the death of the shareholder the nominee becomes entitled to the rights in relation to such shares held by the deceased shareholder, to the exclusion of all other persons unless the nomination is revoked. The said provision states as follows: -

‘(1). Every holder of securities of a company may, at any time, nominate, in the prescribed manner, any person to whom his securities shall vest in the vent of death.

(2). Notwithstanding anything contained in any other law for the time being in force nor in any disposition, whether testamentary or otherwise, in respect of the securities of a company, where a nomination made in the prescribed manner property to confer on any person the right to vest the securities of the company, the nominee shall on the death of the holder of the securities…becomes entitled to all the rights in the securities, of the holder…in relation to such securities, to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.’

77. Although the beneficiaries appear to have reservations about the alleged nomination, none of them have attempted to present a proper case for its invalidation or to convince me to disregard it and proceed as if the same did not exist. It was not even submitted that nominations do not apply to transmission of shares in a limited liability company, and therefore the document relied on to transfer the shares had no validity and accordingly there was no foundation for it.

78. My finding with regard to the said shares is that the alleged nomination was a nullity as there was no statutory basis for it. The interest sought to be conferred by the document relied on to have the shares transferred to Eddah Wanjiru could not be transferred by the means of the alleged document or through the alleged process. The 11,000 shares therefore, although allegedly transferred to Eddah Wanjiru, still form part of the estate of the deceased, and are therefore available for distribution.

79. The beneficiaries have no doubt interest in the property owned by the Oceanic Hotel; they should however have a direct claim to the shares owned by the deceased in the company. They can only pursue their interests in the property of the company through the shareholding in the company. It would appear to me though that the administrators have not done much in terms of preserving the deceased’s interest in the company. They appeared to have scanty information on the goings on in the company, and particularly concerning the disposal of the Oceanic Hotel and related properties. At distribution it is quite apparent that the court will only deal with the disposal of the 1,000 shares that the deceased held in the company and the 11,000 shares held by Ocean View Beach Hotel Ltd in the company.

80. The beneficiaries urged me to call Eddah Wanjiru and Margaret Njeri to account for the disposal of the Oceanic Hotel and related properties owned by the holding company. A proper basis was not laid for the account sought, as it was not explained to me why the account should be rendered by these two in particular. No evidence was laid before me to connect the two to the alleged sale of the assets. No attempt was made by the other administrators to explain why they did not take any steps to stop the sale or to invalidate the transactions, or to generally protect or preserve the asset. There was failure by the all the administrators collectively to protect the asset and the blame cannot properly be placed at the doorstep of a section of the administrators.

81. On the three Nakuru plots Block 8/40, 41 and 42, the officer from the Lands Office, Mr. Edwin Munoko Wafula, stated that each of the three parcels had three separate records, meaning that each one of the plots had three proprietors. He was not able to name any of the proprietors, and there was therefore no indication as to whether the said parcels were in the name of the deceased at the time or whether their ownership had changed. It would be imprudent in the circumstances to distribute the same before the issues surrounding their ownership are resolved.

82. The issue of Muthera Farm is clearer. The administrators obtained leave of court to sell the same. Three of them executed the sale agreement with the buyer. A deposit was paid, and the property was transferred to the names of the buyer before the full purchase price was paid. The transaction was thereafter allegedly stymied by orders obtained on diverse dates for the preservation of the status quo. The disposal of Muthera Farm appears from the record before me to be highly unpopular, for even the administrators who executed the sale agreement do not appear to favour it. There are concerns that the sale was needless, driven by the greed of the administrators and some beneficiaries. The other concern was that the buyer had failed to pay the full purchase price although the property had already been transferred to its name, and therefore there was fear regarding the ability of the purchaser to complete the purchase price.

83. The issue for me to address is whether the property, having been sold and transferred, is available for distribution. Various issues have been by the parties on the status of the sale. There is an issue as to whether consent of the Land Control Board had been obtained for the sale and transfer of the property. The said consent is a requirement under the provisions of the Land Control Act, Cap 302 Laws of Kenya, the relevant provisions of the said law are sections 6, 7, 8 and 22 which provide as follows –

‘6). Each of the following transactions –

(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land, which is situated within a land control area;

(b) the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 for the time being apply;

(c) the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or cooperative society which for the time being owns agricultural land situated within a land control areais void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

(2) For the avoidance of doubt it is declared that the declaration of a trust of agricultural land situated within a land control area is a dealing in that land for the purposes of subsection (1).

(3) This section does not apply –

(a) the transmission of land by virtue of the will or intestacy of a deceased person, unless that the transmission would result in the division of the land into two or more parcels to be held under separate titles; or

(b) a transmission to which the government or the Settlement Fund Trustees or (in respect of trust land) a county council is a party.

7. If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22.

8. An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto; provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.

22. Where a controlled transaction, or an agreement to be a party to a controlled transaction, is avoided by section 6, and any person –

(a) pays or receives any money; or

(b) enters into or remains in possession of any land, in such circumstances as to give rise to a reasonable presumption that the person pays or receives the money or enters into or remains in possession in furtherance of the avoided transaction or agreement or of the intentions of the parties to the avoided transaction or agreement, that person shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or to imprisonment for term not exceeding three months, or to such fine and imprisonment.’

84. The issue for determination here is whether the transaction in question was controlled within the meaning of section 6 of the Land Control Act. Three of the administrators entered into a sale agreement with Impulse Development Co. Limited on 26th October 2005 to dispose of the estate’s beneficial interest in LR No. 8669/3. On the same date the two parties executed a deed of assignment where the estate assigned its beneficial interest in LR No. 8669/3 to the purchaser. The advocates for the estate then wrote to Settlement Fund Trustees on 2nd May 2006 authorizing the Settlement Fund Trustees to transfer the estate’s rights and interests in the property to Impulse Developers Company Limited.

85. The material before me puts the acreage of LR No. 8669/3 at 4296 acres. The farm was mainly utilized for cattle and sheep rearing, and growing of wheat and barley in large scale. It was for all practical purposes agricultural land, which brought it within the realm of the Land Control Act. The property was situated within Nakuru District then and Nakuru County now, which is a controlled area within the meaning of the Land Control Act. Any sale or disposal of or dealing with of such land required, by virtue of section 6 of the Land Control Act, consent of the relevant Land Control Board.

86. The transactions of 26th October 2005 were between private persons, administrators of the estate of the deceased person who had beneficial interest in the said property on the one hand, and a limited liability company which sought to acquire that beneficial interest on the other hand. The property in question was at the time registered in the name of the Settlement Fund Trustees, but Settlement Fund Trustees was not party to the agreements of 26th October 2005 as the interest that was being disposed of at that time was not the Settlement Fund Trustees’s but that of the estate. The transactions were therefore not exempt from the provisions of section 6 of the Land Control Act as the Settlement Fund Trustees was not party to them.

87. I have carefully gone through the record and I have not come across any document taking the form of consent by the relevant Land Control Board for the disposal by the administrators of the estate’s interest in LR No. 8669/3 to Impulse Developers Company Limited. I have too carefully gone through the record of the oral evidence tendered on the said transaction, and noted that nowhere did any of the witnesses attest to any consent having been obtained from the Land Control Board for the transactions done on 26th October 2005.

88. The Court of Appeal in Wamukota vs. Donati (1987) KLR 280 declared that section 6 of the Land Control Act laid down the sanction for violation of the Act in absolute terms, so that an alienation made in transgression of the Act was ordained to be void for all purposes. Similarly the same court in Leonard Njonjo Kariuki vs. Njoroge Kariuki alias Benson Njonjo Civil Appeal No. 26 of 1979 Court of Appeal (unreported) stated that once the land in question was proved to be agricultural land within a controlled area, transactions affecting it were controlled which in law became void in absence of consent from the relevant Land Control Board. See also Kariuki vs. Kariuki (1983) KLR 225, Simiyu vs. Watambamala (1985) KLR 852, Onyango and another vs. Lumwayi(1986) KLR 513, Kahia vs. Ng’ang’a (2004) eKLR and David Sironga ole Tukai vs. Francis arap Muge and two others (2014) eKLR. As the transactions of 26th October 2005 were conducted without the consent required under section 6 of the Land Control Act, it is my finding that they were null and void for all purposes.

89. Then there is the transfer instrument dated 16th May 2006 executed between the Settlement Fund Trustees and Impulse Developers Company Limited. An issue was raised regarding the validity of the transfer on ground that there was no consent of the relevant land control board. The transfer transaction involved the Settlement Fund Trustees, and by virtue of section 6(3) of the Land Control Act, it was exempted from the provisions of section 6(1) of the Land Control Act. However, that is not, in my view, sufficient to save the transaction. The transaction of 16th May 2006 could not hold without the transactions of 26th October 2005, for Impulse Developers Company Limited could not have had any status to engage the Settlement Fund Trustees without the estate first relinquishing its interest in the subject property to the company. If then it transpires that the transactions between the estate and the company were void, the subsequent transaction between the company and the Settlement Fund Trustees would not have had any ground upon which it could be stand.

90. There is also the issue of the completion of the transaction. Under the terms of the sale, time was supposed to be of the essence and completion was to be within thirty (30) days. The sale agreement was executed on 26th October 2005. Thirty days were to expire on 26th November 2005 or thereabout. It is not disputed that the sale was not completed within the thirty days, indeed the full purchase price has not been paid todate. The purchasers blamed the orders obtained by the beneficiaries for their failure to complete the transaction, yet at the expiry of the ninety days the orders in question had not yet been made. The orders came long after the completion date had passed; indeed the application seeking the orders had not even been filed. Clearly, the failure to pay the full purchase price within the terms of the sale agreement had nothing to do with the said orders. Obviously the purchasers were in breach of the terms of the sale agreement and therefore the same no longer held.

91. During the oral hearing, it emerged that there was a manuscript of the autobiography of the deceased in the possession of Eddah Wanjiru Mbiyu. That came from Eddah Wanjiru herself, who went on to state that she was ready to surrender the same to the estate. A manuscript is property, which forms part of the estate of the deceased and should be available for distribution.

92. Having disposed of the issue of the property available for distribution, the next issue for consideration should be determination of the persons who survived the deceased, and therefore entitled to a share in the estate of the deceased.

93. The persons who claim to be the survivors of the deceased can be put in different categories. There are alleged spouses, children or grandchildren of the deceased. One side of the family alleges that the deceased was a polygamist, who was survived by two houses, while the other side claims that he had a household consisting of four houses. The persons who have come or been brought forward as survivors of the deceased are as follows –

(a) the alleged surviving children are David Njunu M. Koinange, Paul Mbatia Koinange, George Kihara Koinange, David Waiganjo Koinange, and Lennah Wanjiku Koinange;

(b) the alleged children of the deceased who are themselves since deceased include Mary Wambui Koinange, Elizabeth Waruinu Koinange, Isabella Wanjiku Koinange, Florence Wanjiku Koinange, Isaac Njunu Mbiyu, Solomon Kihara Koinange and Godfrey Karuga Koinange;

(c) the alleged widows of two of the sons of the deceased who are themselves deceased are Joyce Njeri Njunu and Susan Kihara;

(d)the alleged children of the dead daughters of the deceased are Stella Kibara, Stephen Mungai Kibara, Stella Njeri Wambui Mbiyu and Barbara Wambui Koinange;

(e) the alleged widows of the deceased are Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu; and

(f) The alleged children of the alleged widows of the deceased are Moses Njunu Mbiyu, Lydia Wambui Mbiyu, Sylvia Wambui Mbiyu, Fiona Wahu Mbiyu, Benjamin Christopher Njunu Mbiyu and Marion Wangui Mbiyu.

94. There is no unanimity on who the survivors of the deceased are. There is agreement on a section of the survivors but not on the rest. There is consensus regarding all the members of the alleged first house, that is the household of Loise Njeri Nduta. The children from that are David Njunu M. Koinange, Paul Mbatia Koinange, George Kihara Koinange, Mary Wambui Koinange, Isabella Wanjiku Koinange and Elizabeth Waruinu Koinange. David Njunu M. Koinange, Paul Mbatia Koinange and George Kihara Koinange are still alive. Isabella Wanjiku Koinange, Mary Wambui Koinange and Elizabeth Waruinu Koinange are dead, but Mary Wambui Koinange and Elizabeth Waruinu Koinange were survived by offspring. Mary Wambui Koinange is survived by Stella Njeri, while Elizabeth Waruinu Koinange is survived by Stella Kibara and Stephen Mungai Kibara. Isabella Wanjiku Koinange died without leaving offspring. It is agreed by all the claimants that the persons named above as children and grandchildren of the deceased are legitimate survivors of the deceased duly entitled to a share in his estate.

95. There is general consensus regarding the survivors from the alleged second house, that is the household of Rith Damaris, except for Lennah Wanjiku Koinange, who was disputed by Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu. Both argued that she was not a child of the deceased. The children from this house are Florence Wanjiku Koinange, Isaac Njunu Mbiyu, David Waiganjo Koinange, Solomon Kihara Koinange, Godfrey Karuga Koinange and Lennah Wanjiku Koinange. Only David Waiganjo Koinange, and Lennah Wanjiku Koinange are alive from the second house, the rest have passed on. Of the three dead sons, two, Isaac Njunu Mbiyu and Solomon Kihara Koinange, were married, the third, Solomon Kihara Koinange, was not. Isaac Njunu Mbiyu and Solomon Kihara Koinange were survived by widows and children. Isaac Njunu Mbiyu was survived by Joyce Njeri and five children - Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru; while Solomon Kihara Koinange was survived by Susan Kihara and one daughter - Angela Wambui Kihara. Godfrey Karuga Koinange died with spouse or children. The dead daughter is Florence Wanjiku Koinange. She was unmarried at the time of her demise, and was survived by offspring, Barbara Wambui. It was Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu who alleged that Lennah Wanjiku was not a child of the deceased. The challenge to the paternity of Lennah Wanjiku was dropped. Margaret Njeri withdrew her contest on 10th March 2014, while Eddah Wanjiru did not seriously pursue it in her evidence and in the oral submissions made by her advocate at the various stages of the hearing before me when the issue of the DNA test came up. The cumulative effect of the recorded evidence is that none of the alleged survivors from the second house is disputed.

96. The alleged third house is that of Margaret Njeri Mbiyu. She did not list her children, Moses Njunu Mbiyu and Lydia Wambui Mbiyu, as survivors and heirs of the deceased. It is Eddah Wanjiru who mentions them as survivors. Margaret Njeri testified that he had no biological children with the deceased. The two who are named as her children were adopted in a process that took place after the deceased died. She stated that it was on that account that she did not consider them to be children for the purposes of succession for the deceased was not party to their adoption. Under the circumstances, Margaret Njeri Mbiyu is the only claimant from the alleged third house of the deceased. Her status is contested by members of the first and second houses of the deceased. They allege that she was not a widow of the deceased. I am obliged to determine whether she is indeed a survivor of the deceased and therefore a person entitled to a share in his estate.

97. The alleged third house is that of Eddah Wanjiru Mbiyu. She has listed her four children - Sylvia Wambui Mbiyu, Fiona Wahu Mbiyu, Benjamin Christopher Njunu Mbiyu and Marion Wangui Mbiyu - as survivors and heirs of the deceased. Her status and that of her children as survivors of the deceased has been contested by the first and second houses of the deceased, and by Margaret Njeri Mbiyu. They allege that she never married the deceased, and that her children were not sired by the deceased. I have to make a determination as to whether Eddah Wanjiru Mbiyu and her children were survivors of the deceased and heirs to his estate.

98. Margaret Njeri’s case is that she began to cohabit with the deceased on 8th August 1968 at Ehothia Farm. The cohabitation was formalized through a Kikuyu customary law ceremony conducted eight (8) months thereafter. The customary law marriage was followed by a civil ceremony conducted before a Kiambu DC on 20th March 1971. She alleged that cohabitation at Ehothia Farm lasted till 1976 when she separated from the deceased after she was sent away. She asserted that she was never divorced by the deceased and therefore she remained his wife, and upon his death she became his widow. She appeared to invite the court to find that she was married under both statute and customary law, and also that a presumption of marriage could be make from the given circumstances.

99. She did not call any witness or witnesses to support her assertion of the alleged cohabitation prior to the alleged customary law ceremony. The period of cohabitation was a mere eight months. No child was born within the period. It was not alleged that the said cohabitation ought to be considered by the court in an effort to determine whether a marriage could be presumed therefrom.

100. The concept of presumption of marriage has its origins in the English law. It is a common law construct, and it finds its application in Kenya through the Judicature Act, Cap. 8 Laws of Kenya. It holds that where a man and a woman have cohabitated for such a length of time and in such circumstances as to have acquired the reputation of being a man and a wife, a lawful marriage between them will generally be presumed though there may be no positive evidence of any marriage having taken place. The presumption can only be rebutted by strong and weighty evidence to the contrary. The presumption is made both where there is some evidence of a marriage ceremony of some sort having been performed followed by cohabitation as husband and wife and also where there is no evidence of any sort of marriage ceremony but there is evidence of cohabitation by and acceptance of the parties by the community as such. In both cases a very heavy burden of proof is imposed on the one who wishes to rebut the presumption.

101. In the English case of In the Breadalbane(1867) LR 1 HL,Cranworth J stated that whereupon the death of persons who had cohabited without a formal ceremony of marriage a succession opened to their children, anyone claiming a share in the such succession as a child would establish a good prima faciecase by showing that parents had always passed in society as a man and his wife. He added that marriage can only exist as a result of mutual agreement. It was stated that the conduct of the parties and of their friends and neighbours, as to their habits and repute, affords strong evidence that at some unascertained time a mutual agreement to marry was entered into by the parties passing as man and wife. Habit and repute is generally conclusive evidence of marriage, unless the same is met by counter evidence. In re Thompson v Thompson (1904) 91 LT 680 a man and woman lived together for ten years and had 5 children and the neighbours treated them as husband and wife. The court held that a presumption of marriage had arisen that the parties were husband and wife.

102. The first record of its application in Kenya is in the case of Hortensia Wanjiku Yawe vs. The Public TrusteeNairobi CACA No. 13 of 1976. In the matter, the parties had cohabited from 1963 to 1972 when the man died. The woman claimed his estate as his widow under customary law. The Public Trustee then moved the court asking for a determination as to whether the woman was the widow of the deceased. The court did not consider whether or not the essentials of a Kikuyu customary law had been complied with, but considered the circumstances of the parties cohabitation - that the man had orally and in writing described the woman as his wife, the community treated the couple as husband and wife, the mother of the man knew the woman as her son’s wife, among other factors. The court concluded that the fact of the long cohabitation as man and wife gave the presumption of a marriage in favour of the woman, which presumption could only be rebutted or displaced by cogent evidence to the contrary. It was stated that the presumption was derived from English law and was not opposed to Kikuyu law.

103. Hortensia Wanjiku Yawe vs. The Public Trusteehas been followed or applied in a host of cases decided thereafter. These include In the Matter of the Estate of Samuel Muchiru Githuka – deceased High Court Succession Cause No. 1903 of 1994, Njoki vs. Mutheru and others (1976 – 1985) EA 416 and Christopher Nderi Gathambo vs. Samuel Muthui Munene Nairobi High Court Civil Case No. 1372 of 2001, among others. The principle was applied in In the Matter of the Estate of James Mberi Muigai Kenyatta Nairobi High Court Succession Cause No. 2269 of 1998, Gathere vs. Gathere (1986 – 1989) EA 134 and Kisito Charles Machani vs Rosemary Moraa Nairobi High Court Civil Case N. 364 of 1981, without Hortensia Wanjiku Yawe vs. The Public Trusteebeing cited specifically. See also Kituu vs. Nzambi (1984) KLR 411, Nderitu Ndirangu vs. Patrick Mwago Wanjau(2011) eKLR and Anastasia Mumbi Kibunja and four others vs. Njihia Mucina (2013) eKLR.

104. The principle emerging from these cases is that the presumption would be made in circumstances where the couple passed in society as husband and wife, what should be critical importance is the conduct of the parties and that of their friends and neighbours as to their habits and repute. From the material that Margaret Njeri placed before me I am not satisfied that a presumption can be made in the circumstances that the alleged eight months cohabitation between her and the deceased could have amounted to a marriage.

105. Although Margaret Njeri alleged that she and the deceased went through a Kikuyu customary ceremony of marriage eight months after she began to cohabit with the decesaed, she did not describe the nature of the ceremony, save it took place at her parents’ home at King’eero Village, Lower Kabete. There is therefore no material upon which I can decide whether the ceremony mentioned by the Margaret Njeri led to a valid Kikuyu customary law marriage.

106. Eugene Cotran in his book Restatement of African Law – Kenya Vol. 1 Marriage and Divorce, 1968, has detailed the various essential stages that have to be taken prior to the solemnization of a valid Kikuyu customary law marriage. The steps listed include the consent of the family of the bride, the performance of a series of betrothal ceremonies which commence with the taking of beer (what is known as the njohi ya njurio), payment of the first installment of dowry (known as ruracio) and the concluding ceremony known as the ngurario. The actual marriage ceremony is performed after the ngurario and is called guthinja ngoima, during which both families meet, make merry by slaughtering sheep and exchanging presents. Ideally, the woman should be handed over officially after the guthinja ngoimaceremony. See also In the Matter of the Estate of Samuel Muchiru Githuka – deceased(supra), Nderitu Ndirangu vs. Patrick Mwago Wanjau(supra) and In Re the Estate of Harun Kagechu Kahagi (Deceased) (2009) eKLR.

107. Margaret Njeri was obliged to lead evidence to prove that all these stages in the solemnization of a valid Kikuyu customary law marriage were undertaken. The position has been stated in a long line of cases, which include Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (1965) EA 735, Sakina Sote Kaittany and another vs. Mary Wamaitha Civil Appeal No. 108 of 1995 Court of Appeal (unreported) and Atemo vs. Imujaro (2003) KLR 435, that he who seeks to rely on any African customary law as the basis of his claim must prove by evidence the existence of such custom. See also Irene Njeri Macharia vs. Margaret Wairimu Njomo and another Civil Appeal No. 139 of 1994 Court of Appeal (unreported), Gituanja vs. Gituanja (1983) KLR 575, Mukindia and another vs. Margaret Kanario Civil Appeal No. 19 of 1999 Court of Appeal (unreported, In Re the Estate of Harun Kagechu Kahagi (Deceased)and Anastasia Mumbi Kibunja and four others vs. Njihia Mucina (supra). In the absence of such evidence therefore I am unable to conclude whether she was a customary law wife or not.

108. She alleged that she did go through a civil ceremony at Ehothia Farm conducted by the Kiambu DC. She produced copies of photographs allegedly taken at the ceremony to support her assertion. She also produced a photocopy of a marriage certificate of the alleged ceremony. She explained that she could not trace the original certificate saying that the same might have gotten lost as she moved houses. The alleged civil ceremony was strenuously contested by the other parties, stating that the deceased never married Margaret Njeri at any stage of his life.

109. I have reviewed the material placed before me, inclusive of the oral testimony of all the witnesses, and I am convinced that such a civil ceremony of marriage did take place at the time and place alleged by the witness. However, I am concerned about the validity of the said ceremony. At the time the same was conducted, the first wife of the deceased had died, while the second one was still alive. The validity of the first two marriages has not been raised, save that Margaret Njeri and alleged, albeit without proof, that the deceased had divorced the second wife by the time he allegedly married her. The first marriage was alleged, without proof, to have been under statute. The circumstances of the second marriage were not clearly brought out, save that it produced seven (7) children. The last child from that marriage was said to have been born in 1966, suggesting that the same was contracted either in the 1940s or in the 1950s. Considering the circumstances prevailing at the time. I would hold that the same must have been contracted in accordance with Kikuyu customary law for the parties to it were all Kikuyu by ethnicity. No proof was presented to effect that the said marriage had been dissolved by 1968 when Margaret Njeri allegedly began to cohabit with the deceased, nor by 1971 when she purportedly married the deceased under statute.

110. Under the marriage statutes that were in force at the time, a man who was already married under customary law had no capacity to contract a statutory marriage during the currency of the customary law marriage. That position was expressly stated in section 11(1)(d) of the Marriage Act, Cap 150 Laws of Kenya. The said provision states as follows –

‘The registrar, at any time after the expiration of twenty-one days and before the expiration of three months from the date of the notice referred to in section 8 of this Act, shall, upon being satisfied by affidavit that –

(a) …

(b) …

(d) Neither of the parties to the intended marriage is married by native law or custom or in accordance with Mohammed an law to any person other than the person with whom such marriage is proposed to be contracted, Issue his certificate in the prescribed from.’

111. The Court of Appeal pronounced itself on this in Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi Civil Appeal No. 56 of 1984 Court of Appeal (unreported), where the appellant had claimed to have married the deceased under statute, and it was held that the marriage was not valid for the deceased had no capacity to contract a civil marriage on account of having previously contracted a customary law marriage with the respondent which was still subsisting at the time of the alleged civil ceremony. In view of this, it is my holding that there was no valid statutory marriage between the deceased and Margaret Njeri Mbiyu, for the deceased had no capacity to contract the statutory marriage having previously contracted a Kikuyu customary law marriage with Rith Damaris. See also K. (otherwise B) vs. K. (1972) EA 554.

112. Can a marriage be presumed from the alleged cohabitation for the period running from 1971 when the purported civil ceremony was conducted and 1976 when the parties allegedly separated? In the first place, no concrete evidence was adduced that would bring the case within the parameters set out in such cases as In the Breadalbane(supra) and Hortensia Wanjiku Yawe vs. The Public Trustee (supra), in terms of the cohabitation and the conduct of the parties with regard to their habits and repute. Secondly, the presumption of marriage has its origins in the English common law and therefore it is contemplates only monogamous marriages. As a pure common law concept it would not recognize a marriage where a married man is at the same time in cohabitation with an unmarried woman, neither would it countenance a situation where a man is simultaneously cohabiting with two unmarried women. Where the presumption is applied in English law the woman is regarded as a common law wife. Consequently, the principle cannot be applied in this case to recognize marriage between Margaret Njeri and the deceased, who was already married to Rith Damaris at the time.

113. After Margaret Njeri left the matrimonial home in 1976, she stayed away until the deceased died. She came back after his death. She was away for roughly five years, during which time she had no contact with the deceased. That break in the alleged cohabitation no doubt works against Margaret Njeri’s case. The cohabitation was not unbroken from the time the parties allegedly started to live together in 1967 to 1981 when the deceased died. I doubt whether a presumption of marriage can be made in the circumstances.

114. Whether the purported marriage of 1971 was dissolved by divorce decree may be a moot point given what I have held above. It was alleged by Eddah Wanjiru that there were divorce proceedings that culminated in the dissolution of that union sometime in June 1981. She claimed that she saw the divorce decree when the deceased’s lawyer then, Mr. Sam Waruhiu, brought the same to the deceased. However, she did not produce a copy of the alleged decree. There is therefore no basis upon which I can hold that there was a judicial pronouncement decreeing dissolution of the alleged statutory marriage.

115. There is also the question of the alleged marriage between Margaret Njeri and Charles Karuga Koinange. Members of the first and second houses allege that Margaret Njeri married Charles Karuga Koinange, the deceased’s brother, after the deceased’s demise. They base their claim on the divorce proceedings commenced in Nairobi High Court Divorce Cause No. 51 of 1987 by Mary Njoki Karuga against her husband, Charles Karuga Koinange, where Margaret Njeri, though not named as a co-respondent with the said Charles Karuga Koinange, was cited as the cause the former’s marital woes. The said Charles Karuga Koinange asserted, in pleadings filed in that cause, that he had married Margaret Njeri in what he described as a levirate union. Those pleadings were cited before me, and by consent of the parties it was ordered that the file in Nairobi High Court Divorce Cause No. 51 of 1987 be made available for the purpose of these proceedings.

116. The court file in Nairobi High Court Divorce Cause No. 51 of 1987 was availed, I perused it and the same was used by counsel for the purpose of cross-examination. The petitioner in that cause founded her cause on the allegation that respondent, Charles Karuga Koinange, had taken over her late brother’s widow, and he had set up residence with her within a section of the matrimonial homestead. In his answer to the petition dated 1st September 1987, the respondent asserted that Margaret Njeri was his wife that he had married under Kikuyu customary law, and cross-petitioned for the dissolution of the marriage. In her reply to the answer and cross-petition, Mary Njoki Karuga, asserted that Margaret Njeri could not be a wife of her husband, Charles Karuga Koinange, for the latter had contracted a statutory monogamous marriage with her which was still subsisting, therefore making the relationship between Margaret Njeri and Charles Karuga Koinange adulterous and immoral. The matter proceeded expartein the absence of Mary Njoki, the court being satisfied that she had been properly served with a hearing notice. Her petition was dismissed, the cross-petition was allowed and the marriage dissolved. She preferred an appeal at the Court of Appeal against the dissolution of the marriage. The appeal, being Nairobi Court of Appeal Civil Appeal No. 155 of 1989 was heard and dismissed in a unanimous judgment delivered on 30th April 1993.

117. In the proceedings before me, Margaret Njeri strenuously denied having been married by Charles Karuga Koinange after the deceased’s death, and of even ever having had any adulterous relationship with him. She asserted that she was never party to Nairobi High Court Divorce Cause No. 51 of 1987 for she was never cited as a co-respondent in the matter. She appeared to plead ignorance about the said cause and the matters raised in it.

118. Yet the material in Nairobi High Court Divorce Cause No. 51 of 1987 appears place Margaret Njeri squarely on the spot. There is an affidavit of service on record, sworn on 23rd April 1988 by Samuel Odero and filed in court on 27th May 1988, indicating that she was served with papers in the cause at Njuno Estate, which belonged to Charles Karuga Koinange, and she was said to have been pointed out for service purposes by Charles Karuga Koinange himself. The trial court, as well as the appellate court, found for a fact that she was indeed cohabiting with Charles Karuga Koinange. Apaloo CJ in his judgment said –

‘Having dismissed the appellant’s petition, he proceeded to hear evidence from the respondent. The latter admitted, quitefrankly, that another woman had entered his life, six years previously in 1983. He said he was living with her as his wife. So he prayed for the exercise of the Judge’s discretion in his favour notwithstanding his own adultery. That woman was his late brother’s widow by the name Njeri.

The learned Judge was obviously impressed by the respondent’s evidence and candour and observed that –

‘The husband was very tolerant and patient. He did not file any litigation against her until the wife herself initiated these proceedings in 1987, when he cross-petitioned for divorce.

The husband asked me to use my discretion in his favour which I hereby do in connection with the present liaison with his late brother’s wife named Njeri.’‘

119. In view of the above, the assertion by Margaret Njeri that she never had a relationship with Charles Karuga Koinange after her alleged husband’s death is hollow. The fact of that affair came out clearly in the proceedings cited above and I do not think any amount of denying it can change the facts. It is also curious that in the instant proceedings the record of 12th January 1984 reflects that Charles Karuga Koinange sought to be appointed administrator to represent the alleged third house of Margaret Njeri. There is also on record an affidavit sworn by Paul Mbatia Mbiyu on 17th September 1992 and filed herein 18th September 1992, which linked her to Charles Karuga Koinange, stating that she resided at Mombasa in a house provided by Charles Karuga Koinange. There is an affidavit too by George Kihara Mbiyu in similar terms sworn on 11th March 1992 and filed herein on 24th March 1992. I also noted that when Mary Njoki Karuga showed up to testify in the matter Margaret Njeri was visibly rattled and was apparently relieved when the former suddenly made herself unavailable and her evidence was expunged from the record.

120. The only matter for me to determine with regard to the said affair is whether the same amounted to marriage, under either customary law or arising from presumption founded on prolonged cohabitation.

121. Charles Karuga Koinange, in the pleadings he filed in Nairobi High Court Divorce Cause No. 51 of 1987, referred to his affair with Margaret Njeri as a customary law marriage or a levirate union. The trial court in Nairobi High Court Divorce Cause No. 51 of 1987 and the Court of Appeal in Civil Appeal No. 155 of 1989, in the judgments rendered in the matters, treated the said affair as adulterous. There is on record in Nairobi High Court Divorce Cause No. 51 of 1987 copy of the marriage certificate in respect of the statutory marriage between Charles Karuga Koinange and Mary Njoki Karuga. The two married on 2nd January 1960. The said marriage was dissolved by the decree pronounced by Rauf J on 22nd May 1989.

122. The marriage of 2nd January 1960 was celebrated under the Marriage Act, Cap 150 Laws of Kenya, now repealed. Section 37 of the said law provided that –

‘Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native law or custom, but, save as aforesaid, nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any native law or custom, or in any manner apply to marriage so contracted.’

Section 42 of the Marriage Act criminalises any subsequent marriage. It states that -

‘Whoever, being unmarried, goes through the ceremony of marriage with a person whom he or she knows to be married to another person shall be liable to imprisonment for a period not exceeding five years.’

123. The effect of sections 37 and 42 of the Marriage Act is that marriages contracted under that Act are monogamous, and a person who contracts marriage under statute therefore loses capacity to contract subsequent marriages during the currency of the statutory marriage or prior to its dissolution. This then means that if Charles Karuga Koinange and Margaret Njeri purported to go through a ceremony of marriage under customary law between 1983 and 22nd May 1989 the same got caught up by sections 37 and 42 of the Marriage Act, for Charles Karuga Koinange had no capacity to contract marriage with Margaret Njeri during that period, whether under customary law or statute, for he was still validly married to Mary Njoki Karuga. It also meant that any cohabitation by the two over that period could not give rise to a presumption of marriage for the reasons that I had given earlier; that being a common law concept, presumption of marriage would only arise in cases where it would result in a monogamous marriage. Charles Karuga Koinange was already married under statute at the time, a presumption that his cohabitation with Margaret Njeri amounted to a marriage would have resulted in a polygamous situation, which has no place under common law.

124. Section 37 of the Marriage Act has been addressed by the courts in several cases and the position set out above was affirmed in such cases as In the Matter of the Estate of Samuel Muchiru Githuka – deceased(supra), Pauline Ndete Kinyota Maingi vs. Rael Kinyota Maingi(supra), Irene Njeri Macharia vs. Margaret Wairimu Njomo and another (supra), Muigai vs. Muigai and another (1995-1998) 1 EA 206 and Kigotho vs. Rodgers and another (1991) KLR 614, among others.

125. Can section 3(5) of the Law of Succession Act be called in aid of Margaret Njeri? Section 3(5) states as follows –

‘Notwithstanding the provisions of any other written law, a woman married under a system of law which allows polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of the Act, and in particular sections 29 and 40 thereof, and her children are, accordingly, children within the meaning of the Act.’

126. The above provision was designed to protect women who married men under customary law who were already or subsequently married under statute. The provision was introduced into the Law of Succession Act in 1981 specifically to circumvent the position taken by the High Court in Re Ruenji’s Estate (1977) KLR 21 and Re Ogola’s Estate (1978) KLR 18, where it had been held that such women were not wives taking into account the provisions of section 37 of the Marriage Act. The effect of section 3(5) of the Marriage Act is that such women would be considered as wives for succession purposes notwithstanding what section 37 of the Marriage Act said. See Irene Njeri Macharia vs. Margaret Wairimu Njomo and another(supra) and In Re the Estate of Harun Kagechu Kahagi (Deceased)(supra).

127. Margaret Njeri was not married under a system of law allowing polygamy to a man who was already married under statute, for what she and the deceased purported to go through in 1971 was a ceremony of marriage under statute, and no evidence was placed before court to satisfy me that the two ever went through a ceremony of marriage under Kikuyu customary law. Her situation does not come under the purview of section 3(5) of the Law of Succession Act, and she cannot therefore seek cover under that provision. I cannot therefore pronounce her a widow of the deceased on the basis of section 3(5) of the Law of Succession Act.

128. The status of Eddah Wanjiru is more or less the similar. She does not claim to have had married the deceased under statute, but if I understood her evidence correctly, she was asserting that she had married the deceased under Kikuyu customary law. She appeared to state two conflicting positions. On the one hand, she appeared to say that she had married traditionally although there was no ceremony; and on the other she said that dowry was paid and the ngurarioceremony performed, although the deceased was not in attendance. She appeared to say that there was no traditional ceremony because her father was a layleader with the local Anglican Church, the St. John’s Church Kiambaa, who would not have been party to such events. She did not call any of the persons that she alleged to have been present at the ngurario, nor her own mother, who she said was still alive, to attest to those claims.

129. What constitutes the formation of a valid Kikuyu customary law marriage is well documented in authoritative texts and case law. Cotran’s Restatement of African Law – Kenya Vol. 1 Marriage and Divorce, 1968, has gone into great detail on the various stages of the formation of a valid Kikuyu customary marriage. There is also Jomo Kenyatta’s Facing Mount Kenya: The Tribal Life of the Gikuyu, 1961. There is a trove of cases which have dealt with it. I have already mentioned In the Matter of the Estate of Samuel Muchiru Githuka – deceased(supra) where the court noted the stages that the couple must go through before it can be said that they have a valid Kikuyu customary law marriage. Eddah Wanjiru did not present evidence to prove that there existed a customary law marriage between her and the deceased, at least no evidence was led to show that she and the deceased went through the stages mentioned in Restatement of African Law – Kenya Vol. 1 Marriage and Divorce, 1968 and Nderitu Ndirangu vs. Patrick Mwago Wanjau(supra), In Re the Estate of Harun Kagechu Kahagi (Deceased)(supra) and Anastasia Mumbi Kibunja and four others vs. Njihia Mucina (supra).

130. Customary law marriages are not usually documented. In Kenya in the 1970s such marriages were not subject to registration. Indeed, it was not until the new Marriage Act was passed in 2014 that provision was made for registration of such marriages. However, the envisaged registration is yet to start as the subsidiary legislation to operationalize it is yet to be made. The effect of this is that existence of a customary law marriage has to be proved by concrete evidence, essentially involving calling as witnesses persons who participated in the process or who would in one way or other have been involved in the matter, and production of any documentary material that might have been made, such as records of the agreements reached between the families involved, if it was reduced into writing, and the dowry received.

131. Case law has established that customary law marriages have to be proved by calling appropriate evidence. I have cited above the various authorities where this position was taken, that a person alleging that the appropriate customary law steps had been undertaken in the formation of a valid customary law marriage then such person must lead evidence to prove the existence of the custom he wishes to rely on and to prove that the appropriate steps were undertaken to satisfy that custom. See Ernest Kinyanjui Kimani vs. Muiru Gikanga and another (supra),Gituanja vs. Gituanja(supra), Sakina Sote Kaittany and another vs. Mary Wamaitha (supra), Atemo vs. Imujaro (2003) KLR 435, Irene Njeri Macharia vs. Margaret Wairimu Njomo and another (supra) and Anastasia Mumbi Kibunja and four others vs. Njihia Mucina (supra).

132. As Eddah Wanjiru did not call any evidence to prove the custom she was relying on to establish that she was married customarily to the deceased and to prove that the said custom was complied with, I have no basis upon which I can hold that she was a customary law wife of the deceased. She was obliged to lead such evidence, but she failed to avail herself of the opportunity.

133. There is also the issue as to whether, in view of section 37 of the repealed Marriage Act, Cap 150, she could have gone through a valid Kikuyu customary law ceremony of marriage with the deceased given that he had previously contracted a statutory marriage with Margaret Njeri. She sought to go round that by claiming that the said statutory marriage had been dissolved in a decree pronounced in June 1981. She did not however provide any documentary proof of the alleged decree of dissolution of the said marriage. So if the purported statutory marriage was valid, then it follows, if Eddah Wanjiru and the deceased had gone through the relevant ceremonies of marriage under customary law, the same came to naught by virtue of section 37 of the repealed Marriage Act. All this is moot however; as I have already held that the purported ceremony of marriage between Margaret Njeri and the deceased was a nullity for the reasons given.

134. Can I make a presumption that there was a marriage out of prolonged cohabitation between the deceased and Eddah Wanjiru? I doubt that I am in a position to do so. I have above stated the position on the law on presumption of marriage as stated in the English common law, which has been adopted in Kenya through the Judicature Act. The principle envisages the conduct of the couple and their friends and relatives regarding their habits and repute. Evidence ought to be led on the conduct of the couple and the friends and community, from which the court can draw a presumption. See In the Breadalbane (supra) and Hortensia Wanjiku Yawe vs. The Public Trustee(supra), among others.

135. No evidence was adduced on conduct of the alleged couple and that of their friends and community as to their habits and repute. Eddah Wanjiru did not dwell much in her testimony on how she and the deceased lived and how they interacted with the community and how the community regarded them. She did not call their friends, relatives and members of their immediate community as witnesses, to testify on the conduct of the couple and their own conduct towards the couple. Margaret Njeri alluded to cohabitation between Eddah Wanjiru and the deceased, but it transpired that her information on the matter was largely hearsay for she never got to see them together, and indeed she never got to meet Eddah Wanjiru until the day of the deceased’s burial. Eddah Wanjiru’s evidence dwelt more on the events after the demise of the deceased, which, in my view, shed little light on the conduct of the alleged couple and that of their friends and their immediate community. I cannot, from the recorded evidence, make any deductions as regards Eddah Wanjiru and the deceased’s habits and repute that can lead to a conclusion that the society regarded them as man and wife.

136. She appeared to place heavy reliance on a bundle of documents that she filed in court on 28th November 2013 after she had completed her oral evidence on 7th November 2013. The said documents included copies of newspaper cuttings on the deceased’s funeral, a funeral programme and photographs alleged to depict her at various stages both before and after the deceased’s death. The documents were not introduced to the record through an affidavit and Eddah Wanjiru was not recalled to testify on their contents. There is therefore no narrative on the contents of the documents in the bundle. There is no explanation on what the documents are about or the story behind them. In the circumstances I cannot draw any conclusions on what they contain or are meant to establish. In any event, it was held in Wamwere vs. Attorney-General (2004) 1 KLR 166, that newspaper reports have no evidential value and are not authoritative enough for courts to rely on them as a basis for determining a matter.

137. In view of everything that I have said above, I have come to the conclusion that Eddah Wanjiru has not established that she was married to the deceased and therefore that she was an heir to his estate.

138. There is the issue of her children and the question as to whether they are heirs to the estate of the deceased. Two issues arise here. It is not in dispute that the last three children of Eddah Wanjiru - Fiona Wahu Mbiyu, Benjamin Christopher Njunu Mbiyu and Marion Wangui Mbiyu - were not sired by the deceased, for they were born long after the deceased had passed on, Eddah Wanjiru however argued that they were still children of the deceased under customary law and therefore entitled to a share in his estate. The first child - Sylvia Wambui Mbiyu - was born two months after the deceased’s death, and Eddah Wanjiru asserted that the deceased was her father and that made her a heir to the estate. The rest of the claimants alleged that she was not, saying that she was sired by a person they named. 1 will deal with the two issues separately.

139. From the recorded evidence, Fiona Wahu Mbiyu, Benjamin Christopher Njunu Mbiyu and Marion Wangui Mbiyu were born in 19th January 1984, 5th July 1985 and 8th September 1993, respectively. It goes without saying that the deceased, who died on 3rd September 1981, could not possibly have been their biological father. Can they in the circumstances be considered to be heirs by dint of customary law. It is Eddah Wanjiru who asserted that under Kikuyu customary law these children should be considered as the children of the deceased. She did not call any evidence to establish the alleged custom, and no case law was cited to support the assertion

140. It would appear that she was alluding to the notion in customary law that marriage is for life in the sense that the death of the husband does not even bring it to an end. Marriage is supposed to be a communal affair. The various stages in its formation involve many people and ultimately all have a stake in it. The wife is regarded as a wife not just of the husband but of the larger family. That would explain the practice of having widows cared for by the surviving relatives of the departed husband. In that context the said three children of Eddah Wanjiru could be considered as heirs of the deceased. However, evidence should have been adduced to establish that that custom existed under Kikuyu tribal law.

141. The deceased died on 3rd September 1981. That was after the Law of Succession Act commenced on 1st July 1981. Section 2(1) of the Law of Succession Act expressly applied to all estates of persons who died after it came into force. It was held in Rono vs. Rono and another (2005) 1 EA 363, that the application of African customary law was expressly excluded by the said section 2(1) of the Act, unless the Act in other provisions made provision for it. The application of African customary law is allowed in sections 2(2), 5 and 33 of the Law of Succession Act. Section 2(2) applies customary law to estates of persons dying from the Act came into force. Section 5 allows devolution of an estate by will in accordance with customary law. Section 33 applies customary law to property that has been exempted from the provisions of Part V of the Law of Succession Act by section 32 thereof.

142. By dint of section 2(1) of the Law of Succession Act, the estate of the deceased fell for devolution under the provisions of that law for he died after it had come into force. Section 2(2) of the Act was of no application. The deceased died intestate and therefore section 5 of the Act is wholly irrelevant. Section 32 exempts property in certain areas, to be gazetted, from Part V of the Act, and section 33 applies customary law to the property so exempted. Section 32 has so far been applied, through Legal Notice Number 94 of 1981, to property in the Counties of Marsabit, Narok, Tana River, Samburu, West Pokot. Turkana, Isiolo, Mandera, Wajir, Garissa, Lamu and Kajiado. The deceased died possessed of assets situated in areas other than those the subject of LN 94 of 1981, and therefore section 33 of the Law of Succession Act is of no application to his estate. The conclusion to be drawn from the above is that the custom alluded to by Eddah Wanjiru cannot apply in the circumstances to make her last three children heirs of the deceased.

143. Sylvia Wambui Mbiyu was born on 25th November 1981, two or so months after the deceased’s death. From the material placed before me, it can be concluded that there might have been a liaison between her mother, Eddah Wanjiru, and the deceased, which I have held elsewhere did not, in view of the evidence, amount to marriage. She cannot therefore be said to be a child born within wedlock. She can however be regarded as an heir if it is established that she was a child of the deceased conceived but not yet born as at the time of the deceased’s death as per section 3(2) of the Law of Succession Act. The fact that she was a child of the deceased could only be established through conduct of a DNA test. Opportunity was extended to her in that behalf several times but she did not avail herself of it.

144. I had directed on 10th March 2014 that the DNA test was only necessary for Sylvia Maryann Wambui Mbiyu, George Kihara Mbiyu had indicated his willingness to avail his tissue for sampling. On 3rd June 2014 her advocate, Ms. Waitere, informed the court that should it turn out that Sylvia Wambui Mbiyu had not undergone a DNA test as at the conclusion of the trial, she would address the matter of her paternity through her final submissions. I extended the period within which Sylvia Wambui Mbiyu was to undergo the test to 3rd July 2014, failing which the issue was to be addressed in the final submissions. In the end, she did not undergo the test. As matters stand there is no proof that the said Sylvia Wambui Mbiyu was sired by the deceased, and consequently there is no basis upon which I can consider her to be an heir to the estate of the deceased.

145. Both Margaret Njeri and Eddah Wanjiru argue that they had been appointed by the court as administrators and had participated in the sharing of the proceeds of sale of property disposed of on court orders. It is their case that was prima facieproof that the court had disposed of the issue of their status as widows of the deceased.

146. I have carefully gone through the record of the proceedings from the time the cause opened in 1981 up to the time the matter was placed before me. I have noted that the initial administrator was David Njuno Mbiyu Koinange who had been appointed on 13th November 1981 as an interim administrator, holding a grant of letters of administration ad colligenda bona, with the limited mandate to collect and preserve the estate. He had sought a full grant but the same was objected to by Isaac Njunu, and Eddah Wanjiru who filed separate objections in December 1981. Applications for the revocation of the limited grant of 13th November 1981, dated 23rd February 1982 and 5th August 1983, were thereafter filed by Isaac Njunu and Charles Karuga Koinange. The applications were never canvassed and the objections were not heard, but an interim agreement was entered into by the parties. The interim order was recorded on 12th January 1984 to the effect that the interim grant of letters of administration was to be varied to include additional administrators. Those proposed for appointment included Isaac Njuno from the second house, Charles Karuga Koinange for the third house and a person to be nominated by Eddah Wanjiru for the fourth house. Eventually on 5th April 1984 the court appointed Isaac Njunu, Margaret Njeri and Wanjiru Mbiyu as interim limited administrators vide a limited grant of letters of administration ad colligenda bona, retaining David Njunu as the senior interim limited administrator. A limited grant of letters of administration ad colligenda bona was made to them dated 13th April 1984. Subsequently, applications dated 19th August 1991, by George Kihara Mbiyu, Paul Mbatia Mbiyu and David Waiganjo Mbiyu, and 28th October 1991 by George Kihara Mbiyu, were filed seeking revocation of the limited grant of 5th April 1984, on the grounds that Margaret Njeri and Wanjiru Mbiyu were not widows of the deceased. Affidavits in reply to the revocation applications were filed by three of the interim administrators.

147. While the objections and revocation applications were still pending, the holders of the limited grant filed an application dated 7th November 1992 for confirmation of the limited grant of letters of administration ad colligenda bona dated 13th April 1984. It was directed on 18th November 1992 that the determination of the petition for grant of letters of administration be disposed of by way of viva voce evidence, with the interim administrators being treated as the petitioners and the others parties as the objectors. The directions no doubt were in response to both the objections and the applications for the revocation of the limited grant.

148. A formal hearing of the petition was not conducted but the court appointed administrators on 22nd March 1993 after it was urged to do so by counsel on the grounds that the estate was being wasted by the administrators holding the limited grant of letters of administration ad colligenda bona. Those appointed on 22nd March 1993 as substantive administrators were Rith Damaris Wambui Mbiyu, David Njuno Mbiyu, Margaret Njeri Mbiyu and Eddah Wanjiru Mbiyu. The appointment was made by the court without consensus of the survivors of the deceased. A grant to that effect was duly issued to them, and the limited grant of letters of administration ad colligenda bonaof 13th April 1984 was revoked. The full grant of letters of administration intestate of 22nd March 1993 remained in place until Rith Damaris died and was replaced with her son, David Waiganjo Koinange, and a fresh grant of letters of administration intestate was made dated 19th November 2009.

149. Various challenges were mounted to the appointment made on 22nd March 1993. One of them is the summons on record by Isaac Njunu Mbiyu dated 9th October 2000 where the status of Margaret Njeri was raised, on the basis that she was in the 1980s married to Charles Karuga Koinange. The other application is dated 19th November 2002 and was brought by George Kihara Mbiyu, supported by affidavits of, among others, persons who alleged to be former workers of the deceased. The marital status of Rith Damaris, Margaret Njeri and Eddah Wanjiru was challenged. Whereas it was conceded that Rith Damaris had been married under customary law, it was alleged that she was divorced traditionally in 1966. Margaret Njeri was alleged to have had separated from the deceased before he died, and to have had married Charles Karuga Koinange in 1982. Copies of the pleadings and judgment in HCDC No. 51 of 1987 are attached to the applications. The two applications were never disposed of and are still pending.

150. The matter of the status of both Margaret Njeri and Eddah Wanjiru has been alive since the 1980s. It should have been dealt with at the stage of objections to the making of the grant, but it transpired that the full grant was made in 1993 without the parties being given opportunity to ventilate on these issues. Little wonder therefore that thereafter fresh applications were filed seeking revocation of the 1993 grant on the same grounds. The practice is that a grant should not be confirmed or an estate distributed before issues that touch on identity of persons who are entitled to a share in the estate are sorted out. The issue should have been disposed of first before the partial distributions were done.

151. The oral hearing of the application of 20th February 2012 gave the parties that opportunity, although a little belatedly given the partial distribution of the estate following the disposal by sale of some of the assets. In my view the partial distribution before determining those issues did not deny the parties the chance to ventilate on them or rob the court of the opportunity to address the matter. It did not tie the hands of the court. It cannot therefore be argued that the court is estopped from considering whether or not Margaret Njeri and Eddah Wanjiru were wives, or, put differently, are widows of the deceased. The court had not previously taken evidence on the matter, which would have assisted it decide on the matter of the status of these two women, and therefore it cannot be said that the matter is res judicata.

152. Margaret Njeri and Eddah Wanjiru appear to suggest that their appointment as administrators was confirmation that they were widows of the deceased. That is not what I read from the orders of 12th January 1984, 5th April 1984 and 22nd March 1993. There were no considered rulings before the orders were made, and in any case the said orders were meant to move the matter of the administration of the estate forward and not to confirm the two as widows of the deceased. The Court of Appeal previously, in Sewe vs. Sewe and another (1991) KLR 105, held that the appointment of administrators has nothing to do with distribution of the assets among those entitled.

153. I have to consider the matter of the property that has so far been distributed to the two women in the partial distributions that have been done todate. Should I order them to refund the same to the estate or to have the property revert to the estate? I think not. The property was given to them on the strength of a court order. The orders were made by a court of concurrent jursidtcion. I cannot sit on appeal on orders made by my colleagues; neither can I revise them for I do not have before me an application for the review of the said orders. I shall therefore not inetrfer with them; I will leave it to the parties.

154. Having disposed of the issues of the assets that make up the estate of the deceased and the survivors of the deceased, the next matter for consideration is the how the said assets are to be distributed among the survivors.

155. The deceased died intestate and distribution of his estate should therefore to be governed by Part V of the Act which provides for succession in the event of intestacy. From the material placed before me, he died a polygamist, having married more than once under a system of law allowing polygamy. Consequently, his estate should be handled in terms of Section 40 of the Act, which provides as follows:-

“40(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. ”

156. I have found above that Margaret Njeri and Eddah Wanjiru are not widows of the deceased so the distribution envisaged in section 40 of the Act should involve them. The estate is available for distribution amongst the rest of the survivors of the deceased, his children and grandchildren. The spirit of section 40, as read together with section 38 of the Act, the estate should be shared equally amongst the surviving children of the deceased. The surviving grandchildren of the deceased take the whole share due to their dead parents, and where they are more than one they should share their dead parent’s entitlement equally.

157. Section 41 deals with how grandchildren should share the entitlement due to their dead parents from the grandchildren’s grandparents. Section 41 provides as follows –

‘Where reference is made in this Act to the ‘net intestate estate,’ or the residue thereof, devolving upon a child or children, the property comprised therein shall be held in trust, in equal shares in the case of more than one child, for all or any of the children of the intestate who attain the age of eighteen years … and for all or any of the issue of any child of the intestate who predecease him and who attain that age … in which case the issue shall take through degrees, in equal shares, the share which their parent would have taken had he not predeceased the intestate.’

158. The ideal situation is that all the assets that make up the estate ought to be distributed equally as envisaged in sections 38 and 40 of the Law of Succession Act. I however note that the deceased died more than thirty years ago, and the survivors have been in possession and occupation of some of the assets since then. The distribution proposed to a large extent takes that into account, and the court in working a mode of distribution which accords to sections 38 and 40 of the Act should take that into account too.

159. Then there is the issue though regarding the four and half acres that Barbara Wambui had sold to Tangulizi Ventures Ltd. She did so through forged documents and before the grant had been confirmed. The said transaction was therefore contrary to section 82(b) (ii) of the Law of Succession Act. Estate property vests in personal representatives by virtue of section 79 of the Act, and it only they who can legally dispose of it by sale to anyone. Barbara Wambui was not a personal representative of the deceased, the property therefore did not vest in her and she had no legal basis at all upon which she could validly dispose of it by sale.

160. There is also section 45 of the Act, which provides against intermeddling with an estate of a dead person. For avoidance of doubt, section 45 of the Act provides as follows –

‘(1). Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or intermeddle with, any free property of a deceased person.

(2). Any person who contravenes the provisions of the section shall –

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both fine and imprisonment; and

(b) …’

161. Barbara Wambui had no legal authority to handle the property in question in the manner that she did. She contravened section 45 of the Act, and that made her an intermeddler. The purported buyer of the property equally had no authority to handle the property and it was too an intermeddler. Both sides contravened section 45 of the Law of Succession Act and should have been prosecuted through section 45(2) (a) of the Law of Succession Act. See Gitau and two others vs. Wandai and five others (1989) KLR 231. An intermeddler cannot possibly pass a good title to the buyer, even if the said buyer has no notice of the want of title. To tolerate transactions that amount to intermeddling is to encourage the vice. Ideally, the loss suffered by such purchaser should lie where it falls.

162. Nonetheless, the purported buyer, Tangulizi Ventures Ltd, entered into consent in court with two of the administrators to clothe the said transaction with validity. Under the terms of the consent, at the distribution of the estate the interest of the buyer was to be catered for by having four and half acres excised from the share that the court shall find to be due to Barbara Wambui out of the property in question, Kiambaa/Thimbigua/819. The consent order is an order of the court; it has not been reversed, varied or set aside. Indeed, after it was recorded no body filed any application to have the orders set aside or discharged. I am obliged to give effect to it during distribution.

163. The liabilities that wre identified as payable by the esttae were said to be land rates of Kshs. 210, 292. 00 in respect of LR No. 209/8868 Lunga Lunga and Kshs. 2, 762, 111. 00 for LR No. 209/9099, land rents of Kshs. 291, 546. 00 for LR No. 209/8868 Lunga Lunga and Kshs. 45, 283, 400. 00 in respect of LR No. 209/9099. There is also an income tax debt owed to the Kenya Revenue Authority of Kshs. 300, 000. 00. there are too costs due to advocates and valuers, Kshs. 15, 000, 000. 00 to Nduati Wamae & Associates and Kshs. 8, 000, 000. 00 to Odera Obar & Company, Advocates.

164. The statutory debts appear to me to be fairly old, especially that owed to the Kenya Revenue Authority and the land authorities. To my mind these are debts that the administrators ought to have paid as a matter of course. It is a matter of curiousity that sevral assets were sold with authority ostensibly to settle such debts, one would wonder why the funds raised from those sales were not utilized to pay these debts. It is unfortunate that the administrators appear to have been more keen on raising money to pay themselves rather than taking care of the estate.

165. Quite a lot of resources have been expended by the estate on LR No. 209/9099 which is not estate property, but rather a property belonging to a company in which the deceased was a shareholder jointly with others. The said company, Koinange Investments and Development Limited, should account for and refund the monyes spent on it by the esttae. I do not think it would be prudent for the estate to incur more expenses on behalf of the company. The debt therefore owed on land rtaes and rent for the property belonging to the company should not be a charge on the esttae. The rest of identified assets shall be settled out of one of the estate assets which should be sold for that purpose.

166. In the course of the trial an issue was raised concerning intermeddling with the estate. The issue came up specifically about illegal construction on the property at Closeburn Estate despite an order made earlier by Njagi J on 28th March 2012. It was also said that other activities were also going on in various other assets of the esttae. I directed the Deputy Registrar to visit the properties in question and to file a report. She duly did so. From the report I noted that certaiun persons have been doing certain activies on various properties. However, I refrained from taking any futhre steps on the matters when it became clear to me that the same threatened to derail the proceedings on the distribution of the estate, yet it is the distrubtion that will provide the lasting solution to the administration of the estate of the deceased.

167. The matter of advocates costs kept coming up in the course of the oral hearing, with advocates who previously acted for some of the parties filing applications asking me to allow them to have the matter of their costs determined before the distribution of the estate. Advocates fees are not debts of the estate. An advocate who acts for an estate or administrator or heir or beneficiary does not become an heir or beneficiary. He therefore not entitled to participate in the distribution of the estate in terms of being catered for as an heir.

168. An advocate comes into a matter by way of being instructed by a particular person. If he is instructed by an administrator, and he acts as the sole advocate for the estate, he would be entitled to costs from the estate. That, however, does not mean that he should participate in the distribution of the estate, by having estate property allotted to him to settle his fees. No. He should agree on his fees with the administrator or otherwise have his costs taxed in the usual manner at the conclusion of the proceedings.

169. Where there are several administrators, and each one of them in their wisdom decide to appoint an advocate to act for them instead of instructing one advocate for the estate, it would be unfair to the beneficiaries and other claimants if the expense of having multiple advocates is passed to the estate. It would only be just that each one of the administrators bears the cost of their advocates. The fees for advocates appointed by the beneficiaries should be settled by the beneficiaries.

170. After one of the sales of a portion of Closeburn Estate a certain amount of money was placed in an account in the joint names of the advocates acting for the administrators and some of the beneficiaries. An order was made on 26th July 2011 by Maraga J. that the sum Kshs. 284, 000, 000. 00 held by the counsel was not to be disbursed without the authority of the court. An issue arose during the trial concerning the money, and there is even an application pending on the matter. It was alleged that the money was no longer available for it had been withdrawn without an order from court. I directed the advocates concerned to give an account of the said funds, but as at the close of the proceedings the said advocates had not yet given a proper account for the said moneys.

171. In response to an order I had made on 14th August 2014, Ecobank Kenya Limited where the account was maintained filed a statement f account through an affidavit of Grace M. N. Muamba sworn on 18th September 2014. It reflected that the account opened on 22nd July 2011 with an amount of Kshs. 822, 264, 009. 95. As of 29th August 2014, the balance on the account stood at Kshs -3, 050. 10.

172. Money belonging to the estate of a dead person held by any individual or entity is so held in trust. In short, any person holding any money on behalf of an estate of a dead person becomes a trustee of such money. He stands in a fiduciary position so far as such money is concerned and in his relationship with the estate and the beneficiaries. He is bound to account for very cent thereof.

173. It is not denied that certain advocates were authorized by the court to take a certain amount of money meant for the estate, and to hold the same in an account for the benefit of the estate. They were to access it on certain terms. The said money came into the possession of the said advocates in trust for the estate and the beneficiaries. The advocates stand in a fiduciary position with regard to it. They are bound to account to the court, the estate and the beneficiaries. They ought to disclose the balances currently standing in the account, and explain how and on whose authority the money was removed and spent.

174. In the end I make the following orders –

(1) I declare that the assets which form part of the estate of the deceased that are available for distribution are:

(a) LR No. 8669/3 Mau Narok (Muthera Farm)

(b) LR No. 151/3 (Ehothia Farm)(645 acres)

(d) LR No. 209/8868 IR No. 35231 Lunga Lunga Road, Industrial Area, Nairobi (.08768 hectare)

(e) Kiambaa/Thimbigua/819 (98 acres)

(f) LR No. 22 (Closeburn Estate)

(g) LR No. 216 (Ikinu Farm)

(h) LR No. 1232/13 (Githunguri)

(j) Kiambaa/Waguthu/2324 (Kiambaa/Kibichiku or Gichiku) (1. 214 hectares)

(j) Kiambaa/Karuri/T.297

(k) Thimbigua Plot

(i) Closeburn Plots

(m) Banana Hill Plot

(n) Gathanga Plots (x2) (Kanunga Farmers Company)

(o) Kiambaa Kawainda

(p) Shares in Koinange Investments and Develoment Limited (32, 000 shares)

(q) Shares in Koira Ltd (948, 480 shares)

(r) Shares in Kenyattu Trading Company Limited (508 shares)

(s)Shares in Limuru Dairy Limited

(t) Shares in ICDC Invetsment Company Limited (now Centum Limited)(Share Certificates Nos. 019882 and 39629)

(u) Shares in Danson Macharia Sawmills Limited (Elburgon)

(v) Shares in Mboi-I-Kamiti Limited

(w) Shares in Gatatha Farmers Comapnay Limited (165 shares)

(x) Shares in BAT Kenya Limited (Share Certificates Nos. 003863 and 016444)

(y) Shares in Ocean View Beach Hotel Limited (11, 000 shares)

(z) Shares in Oceanic Hotel Limited

(aa) Shares in Kenya Cooperative Cremeries Limited (Share Certificates Nos. 002326, 3834, 5673, 7345, 010115, 011774, 017141, 027787, 040414, 040579, 056126, )

(bb) Shares in Kenya Planters Cooperative Union Limited (Shar e Certificates Nos. 149, 152, 449, 581, 1120, 1801 and 0010003)

(cc) Shares in Horticultural Cooperative Union Limited (Share Certificates No. 573)

(dd) Shares in Theta Group Limited –

(ee) Shares in the Kenya Grain Growers Cooperative Union Limited (003863)

2. I declare that the following are the persons who survived the deceased and who are entitled to a share in his estate –

(a) First House -

(i) David Njunu Mbiyu Koinange

(ii) Paul Mbatia Koinange

(iii) George Kihara Koinange

(iv) Estate of Mary Wambui Koinange (survived by Stella Loise Njeri)

(v) Estate of Elizabth Waruinu Koinange (survived by Stella Kibara and Stephen Mungai Kibara)

(b) Second House –

(i) Estate of Florence Wanjiku Koinange (Barbara Wambui)

(ii) Estate of Isaac Njunu Mbiyu (Joyce Njeri (widow) and Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru (children))

(iii) David Waiganjo Koinange

(iv) Estate of Solomon Kihara Koinange (survived by Susan Kamau Kihara (widow) and Angela Wambui Kihara (daughter)

(v) Lennah Wanjiku Koinange

(3) The assets available for distribution shall devolve as follows -

(a) LR No. 8669/3 Mau Narok (Muthera Farm)(4292 acres)

(i) 174 acres - Road reserve, settlement and amenities

(ii) 500 acres – David Njunu M. Koinange

(iii) 450 acres – Paul Mbatia M. Koinange

(iv) 500 acres - George Kihara Koinange

(v) 500 acres – Estate of Isaac Njunu M. Koinange (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(vii) 450 acres - Lennah Wanjiku Koinange

(viii) 250 acres - Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu)

(ix) 250 acres – Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange)

(x) 260 acres– Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mingai Kibara)

(xi) 250 acres – Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(b) LR No. 151/3 (Ehothia Farm)(645 acres)

(i) 11 acres – Road reserve and police station

(ii) 32 acres – Estate of Elizabeth Waruinu (Stella Kibara and Stephen Kibara)

(iii) 100 acres - David Njunu M Koinange

(iv) 90 acres – Paul Mbatia M. Koinange

(v) 95 acres - George Kihara Koinange

(vi) 70 acres - Estate of Isaac Njunu M. Koinange ((Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(vii) 75 acres - David Waiganjo M. Koinange

(vii) 64 acres – Lennah Wanjiku M. Koinange

(ix) 32 acres - Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu)

(x) 32 acres - Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange)

(ix) 34 acres - Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(i) 4 acres – road reserve

(ii) 4½ acres – Tangulizi Ventures Ltd

(iii) 19 acres – Paul Mbatia M. Koinange

(iv) 9 acres – George Kihara Koinange

(xii) 9½ acres - Estate of Isaac Njunu M. Koinange ((Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(v) 19 acres – David Waiganjo Koinange

(vi) 29 acres – Lennah Wanjiku Koinange

(vii) 2 acres – Memorial grounds

(d) LR No. 150/6, 3668/1 and 4 Limuru (Waehothia Farm)(198 acres)

(i) 13 acres road reserve and settlement

(ii) 25 acres – David Njunu M. Koinange

(iii) 30 acres – Paul Mbatia M. Koinange

(iv) 30 acres – George Kihara Koinange

(xiii) 30 acres – Estate of Isaac Njunu M. Koinange ((Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(v) 28 acres - David Waiganjo M. Koinange

(vi) 22 acres – Lennah Wanjiku Koinange

(xiv) 5 acres - Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange)

(xv) 5 acres - Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(vii) 5 acres – Estate of Mary Wanjiku (Stella Loise Njeri Mbiyu)

(viii) 5 acres – Estate of Elizabeth Waruinu (Stella Kibara and Stephen Mungai Kibara)

(e) Closeburn Estate (Commercial Plots)

(i) 1 acre - David Njunu M. Koinange

(ii) 1 acre – Paul Mbatia M. Koinange

(iii) 1 acre - George Kihara Koinange

(xvi) 1 acre - Estate of Isaac Njunu M. Koinange ((Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(iv) 1 acre – David Waiganjo Koinange

(v) 1 acre – Lennah Wanjiku Koinange

(vi) 1 acre - Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu)

(vii) 1 acre – Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mungai Kibara)

(viii) 1 acre – Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange)

(ix) 1 acre – Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(f) Closeburn Estate Farm (176 acres)

(i) 30 acres – road resrve

(ii) 3 acres - Karuri Community Church

(iii)12 acres – David Njunu M. Koinange

(iv) 12 acres – Paul Mbatia M. Koinange

(v) 11 acres – George Kihara Koinange

(vi) 24 acres – Estate of Isaac Njunu M. Koinnage (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(vii) 34 acres – David Waiganjo M. Koinange

(viii) 40 acres – Lennah Wanjiku M. Koinange

(ix)5 acres – Estate of Florence Florence Wanjiku Koinange (Barbara Wambui Koinange)

(x) 5 acres - Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(g) LR No. 216 (Ikinu Farm) – David Njunu Koinange

(h) LR No. 1232/13 (Githunguri) – Estate of Isaac Njunu M Koinange (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(i) Kiambaa/Waguthu/2324 - Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(j) LR No. 209/8868 IR No. 35231 Lunga Lunga Road, Industrial Area, Nairobi (.08768 hectare) – To be sold and proceeds utilized to settle the debts and liabilities identitified in paragraphs 163, 164 and 165 of this judgement, with the balance being shared out heirs equally to David Njunu M. Koinange, Paul Mbatia Koinange, George Kihara Koinange, David Waiganjo Koinange, Lennah Wanjiku Koinange, Estate of Isaac Njunu Mbiyu (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru), Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu), Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange), Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara) and Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mungai Kibara)

(k) Kiambaa/Karuri/T.297 – Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mungai Kibara)

(i) Thimbigua Plot – David Njunu Koinange

(m) Banana Hill Plot – David Njunu Koinange

(n) Gathanga Plots (x2) (Kanunga Farmers Company) – Paul Mbatia Koinange

(o) Kiambaa Kawainda – Paul Mbatia Koinange

(p) Shares in Koinange Investments and Develoment Limited (32, 000 shares) – Equal shares to David Njunu M. Koinange, Paul Mbatia Koinange, George Kihara Koinange, David Waiganjo Koinange, Lennah Wanjiku Koinange, Estate of Isaac Njunu Mbiyu (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru), Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu), Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange), Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara) and Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mungai Kibara)

(q) Shares in Koira Ltd (948, 480 shares) – Equal shares to David Njunu M. Koinange, Paul Mbatia Koinange, George Kihara Koinange, David Waiganjo Koinange, Lennah Wanjiku Koinange, Estate of Isaac Njunu Mbiyu (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru), Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu), Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange), Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara) and Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mungai Kibara)

(r) Shares in Kenyattu Trading Company Limited (508 shares) – Paul Mbatia Koinange

(s) Shares in Limuru Dairy Limited – George Kihara Koinange

(t) Shares in ICDC Invetsment Company Limited (now Centum Limited)(Share Certificates No. 019882) – David Waiganjo Koinange and George Kihara Koinange

(u) Shares in Danson Macharia Sawmills Limited (Elburgon) – David Njunu Koinange

(v) Shares in Mboi-I-Kamiti Limited – David Njunu Koinange

(w) Shares in Gatatha Farmers Comapnay Limited (165 shares) – Lennah Wanjiku Koinange

(x) Shares in BAT Kenya Limited (Share Certificates Nos. 003863 and 016444) – Paul Mbatia Koinange

(y) Shares in Ocean View Beach Hotel Limited (11, 000 shares) – Lennah Wambui Koinange and Estate of Solomon Kihara Koinange (Susan Kamau Kihara and Angela Wambui Kihara)

(z) Shares in Oceanic Hotel Limited –David Waiganjo Koinange

(aa) Shares in Kenya Cooperative Cremaries Limited (Share Certificates Nos. 002326, 3834, 5673 and 7345) - Estate of Isaac Njunu Mbiyu (Joyce Njeri Njunu, Barbara Wambui, Belinda Tati, Cedric Mbiyu, Shirley Wanjiku and Wendy Wanjiru)

(bb) Shares in Horticultural Cooperative Union Limited (Share Certificates No. 573) - Estate of Florence Wanjiku Koinange (Barbara Wambui Koinange)

(cc) Shares in Theta Group Limited - Estate of Mary Wambui Koinange (Stella Loise Njeri Mbiyu)

(dd)Shares in the Kenya Grain Growers Cooperative Union Limited (003863) - Estate of Elizabeth Waruinu Koinange (Stella Kibara and Stephen Mungai Kibara)

(4) To facilitate the distribution of LR No. 8669/3 Mau Narok (Muthera Farm) I do hereby declare the sale of the said property on 26th October 2005 to Impulse Developers Limited null and void, revoke the transfer of the said property on 22nd May 2006 to the said company and order that the said property be registerd in the name of the estate of the decesaed;

(5) To facilitate the distribution of Kiambaa/Waguthu/2324, I direct the Land Registrar responsible for Kiambu County to cancel the registration in favour of Wanjiru Mbiyu and instead have the same registered in the name of the estate of the deceased;

(6) To facilitate the distribution of the shares in Ocean View Beach Hotel Ltd, I order revocation of the transfer of the 11, 000 shares held in that company by Eddah Wanjiru and direct that the said shares revert to the estate of the deceased;

(7) To facilitate distribution of landed assets whose title documents have been misplaced or lost, I hereby order the cancellation of all such titles and direct the Chief Land Registrar to reissue new titles;

(8) As I have found Margaret Njeri and Eddah Wanjiru not to be widows of the deceased I hereby declare that they have hereby ceased to be administrators of the estate of the deceased and confirm David Njunu Mbiyu Koinange and David Waiganjo Koinange to be the administraors of the estate of the deceased;

(9) The grant of letters of administration intestate made on 19th November 2009 shall be amended to accord with (8) above, and the same is hereby confirmed in terms of the orders made in this judgement;

(10) The administrators are hereby directed to take urgent steps to recover the assets - such as LR No. 3561/2 and the hotel and lands owned by Oceanic Hotel Limited – which changed hands in unclear circumstances;

(11) The matter shall be mentioned after ninety (90) days for a report on the steps by the administrators with regard to (10) above;

(12) The advocates for the administrators who are the holders of the account at Ecobank Kenya Limited the subject of the orders of Maraga J. of 26th July 2011 to render a true and proper account of the said moneys within thirty (30) days;

(13) Each party shall bear their own costs; save for the administrators who brought the application dated 20th February 2012 whose costs shall be borne by the estate but limited to the conduct of the application by Messrs. Nyaberi & Company, Advocates.

DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF SEPTEMBER, 2015.

W. MUSYOKA

JUDGE