In re Estate of Thambu Baimundi (Deceased) [2019] KEHC 2320 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

SUCCESSION CAUSE NO. 614 OF 2015

IN THE MATTER OF THE ESTATE OF THE LATE THAMBU BAIMUNDI (DECEASED)

JANET ITHIRU.................................................ADMINISTRATOR/APPLICANT

VERSUS

DAVID NJIRU MUGWIKA..................................................................PROTESTOR

J U D G E M E N T

1. This cause relates to the estate of the late THAMBU BAIMUNDI  (deceased) who died on unknown date domiciled at Ganga Location,  Chogoria.  David  Njeru  Stanley the Petitioner in this cause was initially  granted the letters of administration on 22nd August 2011. That grant was  later revoked by this court and Janet Ithiru was  issued with a grant on 9th  October 2017.

2. The estate of the deceased herein comprised the following property:-

1. Mwimbi/South Mugumango/41 measuring approximately 4. 5 acres

3. The administratrix in her Summons for Confirmation of Grant dated 22nd  January 2018 listed the following persons as dependants:-

i. Janet Ithiru

ii. Benard Kamundi (deceased but survived by a wife and children)

iii. Daniel Njiru

iv. Aniel Njiru (deceased  but survived by daughter)

v. Samwel Kaburu (deceased but survived by a daughter)

She purposes to have the estate distributed as follows:

i. Janet Ithiru       - 1. 75 acres

ii. Rosemary Kirumi (niece to Benard Kabundi)  - 1. 75 acres to hold in trust for herself and her son,

iii. Pauline Wawira      - 0. 25 acre

iv. Daniel Njiru Kalarwa      - 0. 5 acre

v. Caroline Kawira      - 0. 25 acre

4. The administratrix, in her supporting affidavit has deposed that the deceased  died on 6th July 1987 and stated that though she has known David Njeru  Mugwika (the protestor herein) for long, she denies that he is a son of the  deceased and claims that she is older than him and therefore could have  known that he was a son of  the deceased if he was one.  According to her  the only children of the deceased who are still alive are herself and Daniel  Njiru.  She further depones that she knows the protestor's mother as Marion Riungu and that the said Marion Riungu was never married to her late father  the deceased herein.

5. The administratrix in her oral evidence in court testified that she is 90 years  old now and saw the protestor grow up.  She testified that  the protestor was  in the same school with her only that he was in the lower  primary while she  was in upper primary school at Kiamaugu Primary School.  According to her  the protestor has never built a house or even ploughed any part of the estate.   He further claimed that her late father (deceased) did not take care of him or  even took him for circumcision ceremony which he would have ordinarily  done if the protestor was his son.

6. The administratrix has pointed  that the clan met sometime in 2011 and  imposed the protestor on them with no evidence that he was a son of the  deceased.  She discredits the evidence of Daniel Njiru stating that he cannot  be in a position to know the status of the protestor in the family as he is  young.

7. The position taken by the administratrix was supported by Beatrice  Mugambi (PW2) who testified that her husband was a brother to the  deceased.  She  told this court that she had never known the protestor to be  connected to the deceased and that Marion Mugwika- deceased mother to  the  protestor was not a wife to the deceased herein.  According to her the  deceased herein had three wives namely:-

i. Agnes Kanga - (deceased)

ii. Naomi Mugai - (deceased) &

iii. Brenda Mugai - (deceased)

The surviving dependants of the deceased according to her are Janet Ithiru-  Daniel Njiru Kararwa, Rosemary Kirumi (daughter in law) and 8  grandchildren.  She further testified that the deceased was a member of  salvation Army church and that David Njeru did not take the name Stanley  or Kalarwa which are the names connected to the deceased in this cause.

8. Rosemary Kirumi (PW3) on her part testified that she was a daughter in law  to the deceased by virtue of having been married to Benard Kamundi (a son  of the deceased who is also now deceased).  She stated that she was married  to Benard Kamundi Stanley (deceased son of deceased herein) in 1978.   According to her the protestor is not a son to the deceased  as she did not  find him at the homestead of the deceased when she got married to that  family.  She claimed that when she got married she only found Micheni  Stanley, Nthiga Stanley, Aniel and that those were the only sons of the  deceased she knew.

9. In her written submissions through Counsel the  administratrix insists that  protestor is not a son to the deceased.  She asserts that the protestor's Identity  Card do not reflect the name of the deceased.  She contends that the  dedication card was not authenticated by anyone from the church and has  urged this court to find the protestor's evidence unreliable.

10. She submits that as far as she is concerned the only beneficiaries are as  follows:-

i. Janet Ithiru

ii. Rosemary Kirumi (wife Benard Kabundi)

iii. Daniel Njiru

iv. Lucy Wakuthi

Polly Kawira

Esther Kathambi

Ann Kaimuri

Janet Kaari

Mwaniki Njeru - Grandchildren

She submits that the estate should  be distributed as follows:-

i. Janet Ithiru  - 0. 9 acre

ii. Rosemary Kirumi  - 0. 9 acre

iii. Daniel Njiru  - 0. 9. acre

iv. Lucy Wakuthi

Polly Kawira

Esther Kathambi

Ann Kaimuru

Janet Kaari

Mwaniki Njeru - 0. 9 acre

11. On the other hand, the protestor in an affidavit sworn on 28th May 2018 has  protested to the proposed mode of distribution by the administratrix.  He has  deposed that he is a son to the deceased who was a polygamous man with  the following 3 houses:-

1st House  - Marion Riungu who had two children David Njeru and Sarah Karinchugu.

2nd House- Belinda Ithima who had four children namely;

i. Kini Stanely (deceased)

ii. Benard Kamundi (deceased)

iii. Micheni Stanley (deceased)

iv. Ndiga Stanley (deceased)

v. 3rd House- Naomi Mugai who had 3 children namely:-

(i) Daniel Njiru Kalarwa

(ii) Samwel (deceased)

(iii) Murungi (deceased)

12. The protestor has proposed that the estate should be distributed according to  the houses and that each house should get 1. 5  acres each.

13. He has asserted that the deceased was a member of Salvation Army Church  and that he took him  for baptism there in 1941  while his brother Daniel  Njiru was baptized in 1949.

14. The protestor has claimed that in 2011 he learned that his brother Micheni  Stanley had sold the land comprising the estate and after a clan meeting he  was given a go- ahead to recover the land.

15. At the hearing of protest, the protestor acknowledged that Janet Ithiru  (administratrix) is also a child of the deceased and that he was brought up by  Naomi.  He told this court that he grew up with the administratrix and went  to school  together at Kariakomo Primary School.  When challenged to show  his identity Card to  this court during hearing of his  protest he claimed that  he had left it at home.

16. He further stated that he was born in 1941 and was aged 78 years old.  He  testified that he obtained his Identity Card in 1979 and that the name  Mugwika is a name he took from his maternal uncle who gave him a parcel of  land in 1972.  He further conceded that he did not reside in the estate though  he claimed that he did so in the past.

17. The protestor further conceded under cross-examination that though he was  baptized in 1941 after he was born the dedication card he has exhibited was  issued only recently when this cause was pending for hearing and that he got  the card because he wanted to get recognition from the deceased family.

18. Daniel Njiru Kalarwa (DW2) a son to the deceased testified and supported  the protestor's claim.  He faulted the administratrix for trying to disinherit  the protestor whom  he recognized as his brother.  He stated that the family  met and decided to give the protestor their blessing to pursue succession  proceedings in respect to the estate of their late father, the deceased herein.   He further accused his  sister in law Rosemary Kirumi for secretly selling  part of the estate to one Purity Kaari and that the said Purity Kaari is the  cause of division in their family.  He stated that he was forced out of the  estate  by the said Rosemary Kirumi and had to seek shelter from his aunt  Fridah Kaari.

19. When pressed in cross-examination, the witness conceded that the protestor  has always lived at his maternal grandfather's place and only used to visit  them. He further stated that the protestor and his family still live there to date  because he was given some portion of land by his maternal grandfather who  brought him up as his own son.  He however stated that the protestor should  get a share of the estate of the deceased.

20. Fridah Kaari (DW3) testified and also supported the protestor's claim on the  estate.  She accused Rosemary Kirumi of trying to chase away all the sons of  the deceased so that she can monopolize the estate.  She stated that her  mother was sister to the deceased and therefore an uncle to her adding that  the deceased used to say that the protestor was his son.  She confirmed that  she gave shelter to Daniel Njiru and has been living with her since 2015  after he was chased away from the estate.

21. In his submission through counsel the protestor has asserted that he should  not be disinherited on account of not using the name of deceased pointing  out that even Janet Ithiru does not use any of the names associated with the  deceased.  He further points out that the other sons Daniel Njiru Kalarwa  and Benard Kamundi Stanley also use different names which he submits are  normal in polygamous marriages.  He contends that the names he uses in his  Identity Card cannot be used to determine the issue of paternity.  He submits  that his witnesses were credible and recognized the protestor as son to  deceased.   He contends that the estate should be distributed equally among  all the surviving children of the deceased.

22. The protestor has submitted that he was baptized at Salvation Army Church  just like his brother Daniel Njiru Kalarwa.  He contends that his baptismal  card he tendered as evidence indicates that the deceased was his father.  He  further contends that even the clan and other family members recognized  him that is why he was mandated to pursue succession proceedings of the  estate of the deceased after Benard Kamundi Stanley had attempted to  disinherit other beneficiaries.  He alleges that the administratrix changed her  position after stating on oath that Rosemary Kirumi persuaded her to disown  the protestor so that he can be locked out.  He submitted that the same  witness stated that she was forced to thumb print a statement which had  already been prepared.

23. The protestor has submitted that he is a son of the deceased and this court  should note that owing to the fact that the deceased was polygamous it is  normal to find some children trying to lock out others from distribution of  the estate and has contended that in this cause Rosemary Kirumi intends to  get a large share so that she can transfer a share to a purchaser who had paid  her secretly.  The protestor has in an interest twist submitted that the estate  should be distributed as follows:-

a) Janet Ithiru   - 1. 75 acres

b) Rosemary Kirumi  - 1. 75 acres

c) Pauline Wawira  - 0. 25 acres

d) Daniel Njiru   - 0. 3 acres

e) Caroline Kawira  - 0. 25 acres

The proposal shows that he has not proposed any share to himself despite  spending quite some time and resources claiming that he is entitled to a  share as a son to the deceased.

24. Analysis and Determination:

This court has considered both the administratrixe's case as well as the  protestor’s case.  The main issue in this matter is whether the protestor is a  dependant within the meaning of Section 29of Law of Succession Act.

25. The position of the law  in regard to (Section 29 (a)is that a child to a  deceased person is  automatically considered a dependant whether or not the  deceased catered for the person or not.  Any other person claiming  dependency under Section 29 (b) must prove that the deceased took care of  him/her immediately prior  to his death.

26. The protestor in this matter is claiming pendency under Section 29(a) of the  Law of Succession Act because he is claiming that he is a son to the  deceased, a   claim that the administrarix vehemently denies.  The legal  position  is that where there is such contestation whoever alleges must prove.   That is what Section 107 of the Evidence Act (Cap 80 Law of Kenya)  provides.  The standard of proof required in civil matters is on a balance of  probabilities and so this court is required to determine on a balance of  probabilities of the protestor is a son of the deceased.

27. The evidence tendered before me by witnesses from both sides clearly show  that the protestor did not stay with the deceased or has ever resided or  utilized  any part of the estate.  There is evidence that the protestor went to  the same School, Kiamaugu Primary School with the administratrix though  he was in lower Primary School when the administratrix was in upper  primary school.  It is however clear that each of them went  their  separate ways after school as the protestor was staying with his maternal  uncle named Mugwika.   In fact going by the evidence of Daniel Njiru  (DW2), the protestor was brought up by Mugwika who took him as his own  child. The witness  supported the protestor's claim but his support in my  view appeared sentimental rather than factual.  It is clear that the said Daniel  Njiru has been mistreated by Rosemary Kirumi to the extent that he had to  seek shelter in her aunt's place and probably was giving evidence in support  of the protestor just to get back at the said Rosemary Kirumi.

28. The protestor in this cause insists that he is a child of the deceased and that  even some clan members recognizes him.  I however did not see any of the  clan members come to testify in court to support his claim.  Furthermore, a  child as defendant in Section (Section 3(2) of Law of Succession Act) as:-

" Reference in this Act to child" or "children" shall include  child conceived but no yet born (as long as the child is subsequently born alive) and, in relation to a female person, a child born to her out of wedlock, and, in relation to a male person, a child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assured permanent responsibility."

In this cause, the evidence tendered do not show that the protestor fits that  description or definition.  As I have observed, he did not call any clan  member or even the Area Chief or village elders to prove his claims.

29. It is given that the protestor in this cause really went to great lengths in an  attempt to prove that the deceased was his father.  To acquire a baptismal  card as well as a dedication card 60 years or more after the event is either  not a mean task or simply an outright attempt to hoodwink this court.  Either  way I do not find any substance on both the baptismal card and dedication  card which are the only pieces of documents that the protestor really had in  trying to prove paternity or connection to the deceased.  This is because I do  not find such documents as baptismal cards or dedication cards reliable  because there is no one to authenticate them.  How does the protestor wants  this court to belief that a baptismal card issued in 1941 can still be traced and  in the condition it was presented to this court.  The question posed is if it is  true that the protestor was known by the names in the baptismal card and  dedication from the Salvation Army Church, why did not be subsequently  use those names in School and later when he registered and got his Identity  Card? I do not find any evidence that the deceased associated with him in  anyway a father would associate with his son even if  born out of wedlock or  living elsewhere. Why didn't the deceased give him even a place to put a hut  or plough if he knew had a responsibility over him?

30. In the case of Re-estate  Patrick Mwangi Wathiga (deceased) [2015] eKLR  Hon. Mativo J  made the following relevant sentiments which I agree with:

" In my view, the practice of a person emerging after the demise of a   dead person purely to claim share of properties of the dead should be discouraged unless the alleged claimant can demonstrate that there were attempts to have him or her recognized as a beneficiary  member of the family during the  deceased's lifetime or the  deceased left clear instructions to that effect, or his claim can be reasonably inferred from the express or implied circumstances of  the case including the conduct of the deceased or from such reasonable or probable circumstances that can be proved by way of evidence.  Alternatively such a claim can also be admitted if the claimant demonstrates that he was prevented from associating with the deceased during the deceased's lifetime by either infirmity of  body or mind or both or any other reasonable circumstances.  In my view where  someone remains delinked from a family or the person he claims to be a parent for 24 years and only emerges after his/her death, the burden lies on him/her to establish his claim to the deceased's estate and to tender such evidence as may be necessary to establish his claim..."

31. In this cause, the protestor does not state that he used to associate with the  deceased or even close to him it is only DW3 who claims that she used to   over-hear the deceased mention that the protestor was his son during visits  he made to their home for a drink.  However that on its own is insufficient to  establish or prove paternity of the protestor.  While it may be true that the  protestor may have got  involved  in salvaging the estate of the deceased  from being disposed irregularly by Rosemary Kirumi and her late husband, that does not confer him with a rights to inherit the estate even if he says the  clan mandated him to rescue the estate.  I do not find any evidence that the  deceased did anything in his lifetime that showed that he recognized the  protestor as his son.  I find that on a balance of probabilities the protestor has  not proved that he is a son of the decease herein to entitle him inherit any of  his properties.  All indications  as per evidence on record shows that it is his  uncle who brought him up, facilitated his circumcision and settled him where he currently lives.  He has not proven connection with the deceased in  this cause and cannot therefore have any basis to protest the mode of  distribution suggested by the administratrix.  That perhaps may have  unconsciously informed his suggested mode of distribution in his written  submissions.

In the end this court for the aforesaid reasons finds no merit in the protest  filed.  Consequently the grant issued to the administratrix on 9th October  2017 is hereby confirmed as per her suggested mode in her final submissions  which I find reasonable.  The estate comprised in L.R. No. Mwimbi/S.  Mugumango/41 shall be distributed as follows: -

i. Janet Ithiru   - 0. 9 acre

ii. Rosemary Kirumi  - 0. 9 acre to hold in trust for own benefit and in trust for Morris Mwenda

iii. Daniel Njiru Kalarwa  - 0. 9 acre

iv. Lucy Wakuthi

Polly Kawira

Esther Kathambi

Ann Kaimuri

Janet Kaari

Mwaniki Njeru   - 0. 9 acre jointly

I make no order as to costs.

Dated, signed and delivered at Chuka this 14th day of November, 2019.

R. K. LIMO

JUDGE