John Kaburu Mwaja (Deceased) & Vincenza Kainda Mwaja v Gabriel Nkonge Mwaja [2017] KEHC 1238 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 174 OF 2006

IN THE MATTER OF THE ESTATE OF THE LATE M’MWAJA MUNORU alias MWAJA MUNORU

(DECEASED)

JOHN KABURU MWAJA (Deceased) .……………...CO-PETITIONER

VINCENZA KAINDA MWAJA …………………..………… PETITIONER

VERSUS

GABRIEL NKONGE MWAJA ………………..…………… PROTESTOR

R U L I N G

1. M’Mwaja Munoru (hereinafter “the deceased”) died on 15th September, 1997. He left the following surviving him; Sabera Ncoro (widow), Gabriel Nkonge (the protestor), John Kaburu, John Muriungi, Hillary Marangu, Teresia Gakii, Cecili Ntakira, Angela Ngito, Jacinta Maiti and Vincenza Kainda. He left behind a property known as Nkuene/Nkumari/754 measuring 3 acres as the only property comprising his estate.

2. On 16th June, 2006, John Kaburu and Vincenza Kainda applied for letters of administration intestate which were issued to them on 17th 0ctober, 2006. The estate was distributed and a Certificate of confirmation of grant issued on 19th July, 2007 as follows:-

NameDescription of property                 Share of heirs

(L. P. Nkuene/Nkumari/754)

John Kaburu Mwaja                         ”                                              1 Acre

Stella Mukami                                  ”                                              ½ Acre

Amos A. Wangige Gakono            ”                                              ½ Acre

Sabera Ncoro M’Mwaja                 ”                                             ) 1 Acre to

Angela Ngito                                    ”                                            ) be

Cecilia Ntakira Vasilio                   ”                                            ) Registered

Teresia Gakii Kimathi                   ”                                             ) as joint Proprietors

Jacinta Maiti Mwaja                       ”                                             )

Vincenza Kainda Mutiria              ”                                              )

3. By a Summons dated 5th May, 2014, Vicenza Kainda, the Petitioner/Applicant applied for the rectification of the grant. This ruling then relate to that application. The application was expressed to be brought under section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules. The Summons sought that Jacinta Maiti Mwaja be appointed as Co-administrator in the place of John Kaburu Mwaja who had since passed on and that his share of 1 acre in the estate be distributed to the daughters of the deceased jointly. The application further sought that the share of one Teresia Gakii Kimathi who had also passed on be distributed to her son Salesio Munyugi Kimathi.

4. The application was supported by the affidavit of Vincenza Kainda Mwaja sworn on 5th May, 2014. She swore, that on 11th May, 2009, her co-administrator John Kaburu Mwaja died before the administration of the estate could be finalized; that the daughters of the deceased should take over the share of John Kaburu as his brothers had land elsewhere; that she wished to substitute the deceased administrator with Jacinta Maiti who is also a beneficiary. The applicant further stated that since one of the beneficiaries, Teresia Gakii Kimathi, had passed on, her share should be distributed to her son one Salesio Munyugi Kimathi.

5. The application was opposed by the protestor vide his affidavit sworn on 23rd March, 2015. In that affidavit, Gabriel Nkonge Mwaja stated that he was not opposed to Jacinta Maiti replacing John Kaburu as co-administrator. He was also not opposed to one Amos A. Wangige Gakono being given ½ acre in the estate. However, he was opposed to Stella Mukami getting ½ acre and the daughters getting the share of John Kaburu in the estate which in his view should be inherited by him.

6. The protestor contended that the share of Stella Mukami had been sold to one Josphat Kimathi Gabriel when she was unable to pay some loan. In his view, the daughters of the deceased should share only one acre as they are all married and have other lands with their husbands.

7. Although the court ordered that parties to file submissions, only the protestor filed his. The petitioner did not file any. The submissions made on behalf of the protestor reiterated what he had deposed to in his replying affidavit. I have considered the affidavits on record as well as the submissions. The issues for determination are;should a co-administrator be appointed; should the estate be redistributed as proposed by the applicant or by the protestor?

8. This is an application for rectification of the Certificate of confirmation of grant issued on 19th July, 2007. The estate had been fully distributed on 16th July, 2007 as set out at the beginning of this ruling. I have seen the application for confirmation dated 23rd April, 2007. The same was accompanied by a Consent which was signed by all the beneficiaries whereby they agreed to the mode of distribution. All the beneficiaries attended court on the date of confirmation and the distribution of the estate was accordingly confirmed in terms of what the parties had agreed.

9. There is no dispute that John Kaburu Mwaja, the applicant’s co-administrator passed away on 11th May, 2009 as can be seen from the Certificate of Death No. CNo. 338145 dated 16th July, 2009. It is also not in dispute that as at the time of his death, the administration of the estate of the deceased had not been concluded. The proposed co-administrator, Jacinta Maiti is also a beneficiary of the estate. In this regard, there is no legal impediment to her appointment as co-administrator of the estate of the deceased.  The first issue is resolved in the affirmative.

10. The second issue is the re-distribution of the estate. The applicant proposes that the share on one Teresia Gakii Kimathi who has passed on be distributed to her son Salesio Munyugi Kimathi and the share of John Kaburu be distributed to the daughters jointly. I have seen the original distribution made on 16th July, 2007. One acre was distributed to all the daughters of the deceased together with the widow to hold jointly. There was no evidence to show that Teresia Gakii Kimathi died and if so when. The distribution was made on 16th July, 2007 when the law relating to land in force was the Registered Land Act, Cap 300(now repealed). Under section 102 of that Act,in the event of the demise of a joint owner, the interest of such joint owner passed on to the surviving joint owners. This is unlike the new Land Registration Act, 2012which in section 91gives a presumption of equal shares.

11. In this regard, in the distribution of 16th July, 2007, there was no specific share that was distributed to Teresia Gakii Kimathi. She was to hold 1 acre in the estate jointly with her other four (4) sisters and mother. There having been no identifiable share, and there lacking evidence of her demise and date thereof, I do not think that after her demise, if at all,  there was anything left behind to be taken over by any of her heirs. Accordingly, there is no share to be passed on to Salesio Munyugi Kimathi.

12. As regards the share of the late John Kaburu Mwaja, 1 acre had been distributed to him. According to the distribution of 16th July, 2007, the estate was to be inherited exclusively by the daughters of the deceased and the said John Kaburu Mwaja. The other sons of the deceased Hilary Marangu Mwaja, Gabriel Nkonge Mwaja and John Muriungi M’Mwaja were not to inherit anything. This is because they had been catered for or they had other lands. They signed the consent dated 23rd April, 2007 which completely excluded them from the distribution.

13. Section 38 of the Law of Succession Act provides for equal distribution of the estate to the children of a deceased person who is not survived by a spouse. In the present case, although the widow was alive at the time of distribution, she was included in the share held by the daughters. In my view, the intention of the parties as envisaged in the distribution agreed upon on 16th July, 2007 was to the effect that except for the late John Kaburu Mwaja, all the other sons of the deceased were to be excluded from the distribution of the estate. There is no evidence that has been produced to show that there has been any change of circumstances to change that view.

14. Since John Kaburu Mwaja did not leave any survivor, his share of one acre is to be inherited by those with whom he was entitled to in the estate. These are the daughters of the deceased. The contention by the protestor that the daughters are married and are therefore not entitled to John Kaburu’s share has no basis. Marriage of a daughter per sedoes not bar a daughter from inheriting her parent’s property. The protestor did not show why it was only him and not his other brothers who was entitled to John Kaburu’s share.

15. Further, there was no evidence to persuade the court to interfere with the other aspects of the distribution made on 16th July, 2007 as suggested by the protestor.

16. Accordingly, I find the application to be meritorious. I allow it in terms of prayer 1 (a) and (b). Salesio Munyugi Kimathi’s name is struck out of prayer 1(b) of the Summons. Since this is a family matter, each party shall bear own costs.

DATED and DELIVEREDat Meru this 7th day of November, 2017.

A.MABEYA

JUDGE