In re Estate of M'nthathai M'ntuka alias Eliphas Nthathai M'ntuka alias M'athathai M'athuka - (Deceased) [2019] KEHC 6611 (KLR)

REPULIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

MISC. SUCCESSION CAUSE NO. 37 OF 2017

IN THE MATTER OF THE ESTATE OF M'NTHATHAI  M'NTUKA alias ELIPHAS NTHATHAI M'NTUKA alias M'ATHATHAI M'ATHUKA- (DECEASED)

AND

PHERISTER CIANGAI MUTEGI.......ADMINISTRATIX/APPLICANT

VERSUS

KEN MUCHIRI NJOKA................................................1ST PROTESTOR

KENNETH MUGAMBI NJOKA..................................2ND PROTESTOR

J U D G E M E N T

1. The deceased in this cause died on 18th March 2011 at Chuka Hospital  resident at Kinoru.  Going by the petition for letters of administration herein,  the deceased died intestate living the following dependants surviving him  namely:-

i. Pherister Ciangai Mutegi (widow/petitioner)

ii. Cliford Mwiathi Nthathai

iii. Elystone Mugambi Nthathai

iv. Onesmus Kaaria Nthathai

v. Kenneth Mutwiri Nthathai

vi. Josephine Kaimuri Mutegi

vii. Kathomi Mutegi

viii. Lucy Kambura Mutegi

2. The only asset listed as comprising the estate is that property known as L.R.  Magumoni/Mukuuni/1759 which measures approximately 1. 76 Ha.

3. The Petitioner, Pherister Ciangai Mutegi, was appointed the administratrix  of the estate of the deceased by this court  on 29th November 2017.  On 19th  December 2017, the appointed administratrix vide Summons for  Confirmation of Grant dated 14th December 2017 moved this court for  confirmation of the said grant proposing to have the estate distributed as  follows:-

L.R. MAGUMONI/MUKUUNI/1759

i. Pherister Ciangai Mutegi  - 1. 25 acres

ii. Onesmus Kaari   - 0. 619 acres

iii. Morris Mwenda   - 0. 619 acres

Robert Kinyua

(iv) Kaimuri Mutegi   - 0. 619 acres

(v) Kathomi Mutegi   - 0. 619 acres

(vi) Lucy Kambura Mutegi  - 0. 619 acres

4. The Summons for Confirmation of grant dated 14th December, 2017 was  opposed by Ken Muchiri Njoka and Kenneth Mugambi Njoka who filed an  affidavit of protest via affidavit sworn on 2nd February, 2018.  In summary,  the protestors claim that the person indicated as the deceased in this cause  was actually known as Mutegi Nthathai who is also deceased and that prior  to his demise, he fraudulently altered his name to reflect or to read  M'Nthathai M'Athuka which was his late father's name in order to convert  his estate to be his.  The protestors claim that they are children of Elias  Njoka Mugo (deceased) who was a brother to Mutegi Nthathai (deceased).  They have further  averred that the estate of their grandfather initially  comprised L.R. No MAGUMONI/MUKUUNI/562 which measured around  6. 97 ha (17. 22 acres).  They have averred that the said estate was a subject  of a Land Disputes Tribunal who deliberated upon the case and made a  decision that was adopted in Chuka Resident Magistrate's Court Land Case  No.33 of 2000.

5. According to the protestors the Tribunal decided that the subject matter   (MAGUMONI/MUKUUNI/562)  was to be divided as follows:-

a) Elias Njoka Mugo  - 8 acres

b) Mutegi Nthathai  - 8 acres

c) Ciancici Nthathai (widow) of Nthathai M'Athuka)    - 1. 95 acres

6. The protestors allege that the late Mutegi Nthathai appealed against the  decision of the tribunal but the appeal abated upon his demise.

7. The protestors have averred that due to the wrangles over the land, both their  parents were murdered forcing their maternal grandfather to move the   L.D.T (Land Dispute Tribunal) on their behalf as they were still young at the  time.  They have exhibited the proceedings of Mugumoni Land Disputes  Tribunal and the decision adopted in court vide Chuka Resident Magistrate's Court land case No. 33 of 2000.

8. The Petitioner administratrix at the hearing of the protest denied knowledge  of the protestors.  It was her evidence that her husband was known as  Nthatha Nthuka though she conceded that he was also known as Mutegi.    She however denied that her late husband altered his name to reflect his  father's name stating that his father  in law died in 1950s before adjudication  and in her opinion, her husband had no reason to alter his name.

9. The Petitioner further denied being a party to a case registered in Land  Dispute Tribunals and contended that the award was time barred by dint of  Section 4(1) of the Limitation Act Cap 22 Laws of Kenya.  She also  pleaded ignorance of the murder of the protestors' parents.  She however  under cross  examination admitted that her late husband was charged with  the murder of the protestors' mother known as Elosy Kanyua and that she  attended the case  at the Land Disputes Tribunal on behalf of her husband  who then was  in prison custody.

10. The Petitioner also changed tune under cross-examination and admitted that  Elias Ngai Mugo, the protestors' late father was indeed a brother to her late  husband Nthathai Mutegi.  She however insisted that the allegations  contained in the Land Dispute Tribunal's proceedings were lies as in her  contention, her late husband did not alter his name.

11. The petitioner further told this court that her  father in law had instructed her  late husband to take the land in a restion because he had  Tuberculosis and  that he also gave Ngai (protestor's father) a share of land.  She further  conceded that Ciancici was her mother in law.

12. The Petitioner has justified her proposed mode of distribution stating that the  beneficiaries she has named are the only dependants to the estate of the  deceased therein.

13. On the other hand, the protestors as observed above maintained that the  deceased- Mutegi Nthathai fraudulently altered his name to read M'Nthathai  M'Athuka to allegedly acquire his father's land to the exclusion of the others.   They have faulted the petitioner herein for perpetrating the fraudulent deeds  of her late husband which in their view saw the original parcel subdivided  into 8 portions before they were disposed to third parties leaving only L. R.  Magumoni/Mukuuni/1759.

14. Kenneth Mugambi Njoka (DW1) testified in this court and stated that his  late father was murdered in 1997 while their mother was also murdered in  1998 allegedly by their uncle Elphas Mutegi (deceased) over a dispute over  land.  He stated  that though he was aged 6 years old, then, he vividly  remembered how his mother  was killed and their house set ablaze by  Mutegi and his son.

15. The protestors insisted that the estate belonged to their grandfather and that  their late father was given 8 acres by the Land Dispute Tribunal who found  that Eliphas Mutegi had altered his National Identity Card to reflect his  father's name M'Nthathai M'Nthuka.  Kenneth Mugambi Njoka further  stated that the late Mutegi Nthathai began selling part of the estate in  dispute even as the case was going on at the Tribunal and that though they  were young they tried to stop the sales by writing letters to the Area District  Officer.

16. Kenneth Murithi Litira (DW2) the Area Chief Mukuuni Location,  summoned to testify by this court, testified and supported the protestors'  case.  He told this court that he knew the family well.  He stated that the  protestors were sons of the late Eliphas Njoka Nthathai who was murdered.   He further added that he had information that Mutegi tried to forge his  father's name with a view to inheriting the entire estate.  He further added

that he knew the land parcel was subdivided into 3 portions among;

i. Mutegi

ii. Njoka and

iii. their mother.

He added that the subdivision happened in 1980 and though he was not sure  about parcel numbers, he knew that parcel No.1759 belonged to the late  Njoka who was a brother of Mutegi (deceased).  It was his evidence that  Mutegi later altered his Identity Card to read Nthathai Ntuka but according  to him correct name was Mutegi Nthathai.

17. Hellen Mikui (DW3) also testified in this court and stated that her late  father's name was Nthatha Nthuka and that they were 7 children in total and  gave the names as follows namely:

i. Juliet Kabindi

ii. Hellen Mikui

iii. Lenity Munario

iv. Elias K. Ngai

v. Fuodnence  Maitha

vi. Eliphas Mutegi

vii. Njoka Mugo

18. She further insisted that the deceased person in this proceedings is not her  late father but Eliphas Mutegi  her brother who fraudulently altered his name  in order to  deprive his siblings.

19. Edward Kithinji (PW4), the Assistant Chief of Kinoru Sub-Location where  the deceased hailed from also came and testified stating that he wrote  an  introductory letter to the petitioner herein on the strength of the Identity  Card shown to him which reflected the name of the deceased a person he  had known for 10 years.  He however stated that he knew little about a land  dispute and not was he aware that the deceased had altered his name for  ulterior motive.  He further stated that he knew little about the family and  could not tell who the brothers to the deceased were.  He however knew the  petitioner as the widow to the deceased herein.

20.  Analysis and Determination

This cause has raised interesting twists and turns that could as well be fodder  for a horrow movie.  The reason why  I say so is that after hearing the  witnesses testify in this cause and going through the documents filed I am  left wondering at the extent at which some people are prepared to go to  perpetrate and perpetuate greed or covetousness.

21. The estate in this cause comprise that property known as  Magumoni/Mukuuni/1759.  The certificate of official search filed with the  petition for letters of administration indicates that the property was  registered on 7th July 2005 in the name of M'Athathai M'Nthuka and he is  described as the "deceased".  The deceased in this cause as seen from Death  Certificate No.059004 again filed with the petition for letters of  administration shows the name of the deceased as "Eliphas Nthathai  M'Nthuka" and that he died on 18th March 2011.  The details appearing on  the official search in regard to the registered owner on the face of it, even  without going further, shows that the owner of the property comprising the  estate  herein and the deceased in this cause are two different persons.

22. The petition for letters of administration filed vide Runyenjes Senior Principal Magistrate's Court No. 121 of 2011 indicates the estate to belong  to Nthathai M'Nthuka but when the lower court issued notice to be published  at the Kenya Gazette, it introduced alias names "M'Nthathai M'Ntuka"alias  "Eliphas Nthathai Nthuka"and while it is unclear how the alias  names were  introduced, it is apparent that the introduction of alias names  was improper and irregular.

23. This court has also noted that the name of the deceased as per the copy of  the Identity Card is Nthathai M'Thuka.  The first name Eliphas is omitted on  the Identity card but somehow the name surfaces on the  Death Certificate.

24. The protestors have testified that the deceased in this cause was called  Mutegi a fact that the petitioner herself admits.  So why, and where did the  name "Mutegi" vanished to when the deceased obtained his Identity card on  5th December 1996 when he got registered and obtained his Identity Card?.   The claims by the protestors  that the deceased herein, Eliphas Mutegi  Nthathai, altered this name in order to perpetrate a fraud, that is, by  unlawfully and irregularly  acquiring what lawfully belonged to his father  appear to carry some weight.   I have arrived on this conclusion on the  strength of evidence tendered by the Area Chief, Kenneth Murithi Litira  (DW2) who unlike the Assistant Chief Edward Kithinji (DW4) appeared to  know the family of the late M'Nthathai M'Nthuka well.  His testimony that  the late Eliphas Mutegi  Nthathai faked his Identity Card to reflect his  late  father's name was  corroborated by Hellen  Mikui (DW3) who is now the  only  surviving child of the late M'Nthathai M'Nthuka. She therefore knew  her late father well and her siblings.

25. I have also considered the affidavit of the late Elias J. Ngai Nthathai (now  deceased) which was sworn on 17th May 2018 which affidavit clearly lends  credence to the protestor's case.  Though the deponent unfortunately died  before coming to court to testify on the contents of his affidavit, the contents  of his  said affidavit nevertheless supports the assertions by the protestors  and their witnesses that that the late Eliphas Mutegi altered his National  Identify Card to read M'Athathai M'Nthuka with the sole purpose of  disinheriting his siblings which he partly succeeded because the evidence  tendered shows that he subdivided L.R No. MAGUMONI/MUKUUNI/562  and sold resultant  subdivisions to 3rd parties leaving parcel No.  MAGUMONI/MUKUUNI/1759 as the only property remaining on the  strength of that impugned Identity Card .

26. This court has considered the evidence tendered by the petitioner.   Observing her in court while testifying I noted that she was quite evasive  particularly when put to task in regard to existence of a case that involved  her husband at the Lands Disputes Tribunal and the evidence tendered in the  proceedings thereat which clearly revealed the machinations used by her late  husband  Mutegi Nthathai.  She at first denied knowledge of his late brother  in law Njoka Mugo and his wife ELOSY KANYUA (who was allegedly  murdered by her late husband).  This is what  she told this court in one  instance;

" I do not know Elosy .................. I have never known her......... my  husband did not tell me  who she was."

In the other instance she went on to state;

" It is true my husband was jailed for murder.  He had killed Thungutha's daughter...................... it was alleged he killed Ellosy.     I used to attend the murder case in Meru High Court.  I do not know   how long he was jailed........."

27. The same witness, after denying knowledge of the late Elias Njoka as her  brother in law when put to task under cross-examination in regard to the  affidavit. She had sworn on 20th November 2017, became evasive but  her  paragraph 8 of the said affidavit clearly showed that she knew her  brothers in law well besides her mother in law known as Ciancici yet in her  evidence in court she completely denied knowing them. That in my  estimation shows that either the petitioner was unreliable as a witness or was  trying to conceal material facts. This court finds that either way, the  petitioner as a witness was not credible or consistent. When she denied  knowing Hellen Mikui (DW3) as her sister in law, she could not hide the  visible demeanor of discomfort as she responded to the questions put to her  during cross-examination.  What she stated  on oath on 20th November, 2017  particularly  under paragraph 8 contrast sharply with the averments  contained in her affidavit sworn on 13th July 2018 particularly under  paragraph 9 (vii). The  inconsistencies are so pronounced that the only  conclusion one can make is that she was trying in vain to hide some  material facts.

28. This court has keenly looked at the copy of the  Lands Registration  Certificate commonly referred to as the Green Card exhibited by the first  protestor in  his affidavit sworn on 2nd February, 2018.  The copy of the  Green Card  indicates that the original parcel No. Magumoni/Mukuuni/562  was 1st registered on 21st February  1966 and the owner is clearly indicated  as M'ATHATHAI M'NTHUKA.  That parcel was later subdivided by the  petitioner's husband into parcels Nos. 1752-1759.  That fact is uncontested.

29. A look at the proceedings of Land Dispute Tribunal proceedings shows that  the elders found that  Mutegi Nthathai altered his Identity Card so that his  name matched that of his father.  Indeed though it is true that the jurisdiction  of the Tribunal may have been wanting, it is patently clear that they were  not far from establishing the truth. Otherwise why would Eliphas  Mutegi alias Nthathai M'Thuka have an Identity Card issued to him on 6th  December, 1996 when his age indicated he was 48 years old?. Why would  he leave out Eliphas and Mutegi when he was clearly known by those  names? It is this court's finding that the allegation of alteration of the name  by Eliphas Mutegi  has been established and proved to the required standard  in law.  It is quite  clearly that had investigations been carried out before he  died, he was most  likely to be found culpable of a criminal offence(s).

30. I also note from the court proceedings in Chuka Resident Magistrate's Court Land Case No.33 of 2000 that the decision of Land Dispute  Tribunal was adopted to the effect that one Thungutha Mbogo (protestor's  maternal grandfather) was  to hold 8 acres of estate in trust for protestors  who were still minors then.  The adoption order was made on 14th June  2001 and attempts to overturn the same vide appeal turned futile when the  appellant died and no one took up the matter leading to the abatement of the  appeal.  Although this court finds the jurisdiction of the Land Dispute  Tribunal to deal with the estate  of a deceased person questionable, I find  that the decision was never set aside but fundamentally I find that the parcel  comprising the estate herein cannot be described as "free property" of  Nthanthai M'Nthuka alias Elphas alias Mutegi by dint of Section 3 of the  Law of Succession Act.  He certainly was  not the registered owner of that  parcel of land known as  MAGUMONI/MUKUUNI/1759 because the title  of that property as per the certificate of official search was issued to  M'Athathai M' Nthuka on 7th July  2005 by which date the said owner  was clearly indicated as "deceased".  It is clear that on 7th July 2005 Eliphas  Nthathai was alive and could not have been the same M'Athathai M'Nthaka  who by that time was long dead.  It is true that while Eliphas Mutegi  Nthathai  may have succeeded in killing his late brother's wife Elosy Kanyua  and burying her and/or could have had a hand in the killing of his brother  Njoka and burying him, he could not  succeed in killing and burying his  rights over the estate of their father.   Those rights survived him by law and  are rights in rem through the protestors herein. Those rights cannot be  extinguished under Section 4(b) of Limitations Act as contended by the  Petitioner because the rights did not emanate from the decision of the Land  Disputes Tribunal per se.  They emanated from his right to inherit his late  father's land as per the provisions of Section 29(a) of Law of Succession  Act.  The  protest filed herein is a protest filed pursuant to the provision of  Law of Succession Act and not an action brought on the basis of a decision  of Land Disputes Tribunal and adopted by the lower court.  I have in any  event held that the Land Dispute Tribunal really had no jurisdiction to deal  with an estate of a deceased person.

31. The petitioner in her evidence conceded that her father in law was called  M'Thuka and going by the evidence of Hellen Miuki, it is quite apparent that  M'Athathai M'Nthuka and Nthathai Nthuka alias Eliphas Mutegi are two  distinct and different persons.  In fact the Death Certificate of Eliphas  Nthathai shows that he was 63 years old when he died on 18th March 2011  which means that he was born in 1949.  The copy of the Green Card as I  have observed above shows that the original or mother title No.  Magumoni/Mukuuni/562 shows that the parcel was first registered on 21st  February 1966 which means that the said Eliphas Mutegi was 17 years old  and therefore still a minor could not have possibly been M'Athathai  M'Athuka reflected on the Green Card as the owner of the said parcel.  This  clearly shows that whichever way one looks at the documents tendered in  evidence  in this cause, the undeniable fact is that fraud was perpetrated by  the said Eliphas Mutegi Nthathai in the subdivision of parcel No.  Magumoni/Mukuuni/562 which resulted to inter alia  Magumoni/Mukuuni/1759 which comprises the estate herein.

In conclusion, this court finds that parcel No. Magumoni/Mukuuni/1159  does not form the estate of Nthathai M'Nthuka alias Eliphas Nthuka alias  Mutegi.  The true actual registered  owner was M'Athathai M'Nthuka who  was already dead as of 2005 when the parcel was  registered.  Therefore the  actions of the petitioner to list the estate as belonging to her late husband is  both  untenable and unsustainable.  There  is no estate belonging to the  deceased in this cause to administer.  That property known as Mukuuni/1759  shall  remain into the name of M'ATHATHAI M'NTHUKApending the  proper petition for letters of administration to properly administer the estate  in accordance with the law.  To this end I give liberty to Hellen Mikui, who  is the only surviving child to the deceased person to move this court  accordingly.

32.  In order to meet  the  ends of justice, I am inclined to make  the  following order sunder Section 47 of Law of Succession Act and Rule  73 of Probate and  Administration Rules;

i. The protestors herein shall pending, the filing and determination of petition for letters of administration of the estate of M'Athathai M'Nthuka, temporarily be given possession of 2 acres of that  parcel No. Magumoni/Mukuuni/1759 and in particular where  their parents house was situated before it was set ablaze.

ii. I direct the OCS  (Chuka Police Station) to provide security to the District or County Survey who hereby directed to go and curve out 2 acres of the aforesaid parcel and give  temporary occupation to the protestors who shall jointly utilize the portion until the determination of the succession cause to be filed by the said Hellen Mikui or in default the protestors themselves.

iii. I do not usually order for costs but I am inclined to award costs to the protestors in the interest of justice as against the petitioner.

Dated, signed and delivered at Chuka this 13th day of June, 2019.

R K. LIMO

JUDGE

13/6/2019

Judgment signed, dated and delivered in the presence of Murithi for  Protestors and the Petitioner in person.

R.K. LIMO

JUDGE

13/6/2019