Mwandiki M'rithaa v Kimathi M'rithaa [2018] KEHC 1047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

SUCCESSION CAUSE NO. 410 OF 2015

(FORMERLY CHUKA SPM SUCCESSION CAUSE NO. 342 OF 2012)

AND

MWANDIKI M'RITHAA.................................PETITIONER/APPLICANT

VERSUS

KIMATHI M'RITHAA......................................CAVEATOR/PROTESTOR

J U D G M E N T

1. This cause relates to the estate of the late M'Rithaa Mwanirua who died at  Chogoria Hospital on 22nd June 2011 resident at Mutindwa- Maara District. The deceased died intestate as per the petition leaving behind the following  dependants namely:-

(i) John Nkonge Riungu

(ii) Eliphas Nyaga M'Rithaa

(iii) Mwendwa M’Rithaa

(iv) Grace Ithiru Mwiti

(v) Rose Wanjiru Jaban

(vi) James  Muchunku M'Rithaa

(vii) Rose Wanjiru Jaban

(viii) Wanja Njagi

(ix) Caroline Kangai Karuga

(x) Dickson Mugendi Kithuci

(xi) Eliatha Njage Kinyua

(xii) Kimandi M'Rithaa    Grandchildren

(xiii) Dickson Murithi M"Rithaa

(xiv) Evans Kinoti M'Rithaa

2. The properties comprising the estate are listed as follows namely:-

(i) L.R. Mwimbi/Chogoria/530

(ii) L.R. Mwimbi/Chogoria/25

3. The petitioner herein Mwandiki Rithaa, was appointed the administrator of  the estate of the deceased herein on 8th March 2016 and vide Summons for  Confirmation of Grant dated 3rd October 2017 he sought for confirmation of  grant and listed the following beneficiaries:

(i) Mwandiki M'Rithaa

(ii) Johnson Nkonge Riungu

(iii) Eliphas Nyaga M'Rithaa

(iv) Betty Wanja Njagi

(v) Rosebeth Kanjiru M'Rithaa

(vi) Grace Ithiru M'Rithaa

(vii) Caroline Kangai

(viii) Ann Nkinga

(ix) Dorothy Ruguru

(x) Dickson Mugendi Kithuci

(xi) Eliatha Njagi Kinyua

(xii) Dickson Murithi Kinyua

(xiii) James Muchunku M'Rithaa

4. The administrator proposed to have the estate distributed as follows:-

(a) L.R. Mwimbi/Chogoria/530

(i) Mwandiki M'Rithaa  - 4 acres

(ii) Johnson Nkonge Riungu  - 3 acres

(iii) Eliphas Nyaga M'Rithaa  - 4 acres

(iv) Dickson Mugendi Kithuci - 1. 5 acres

(v) Eliatha Njagi Kinyua

Dickson Murithi Kinyua   -  3 acres jointly

(vi) James Muchunku M'Rithaa - 1 acre

(vii) Betty Wanja Njagi   - 0. 75 acre

(viii) Rosebeth Kanjiru M'Rithaa - 0. 50 acre

(ix) Caroline Kangai   - 0. 50 acre

(x) Ann Nkinga

Kimathi M'Rithaa   - 1 acre jointly

(xi) Dorothy Ruguru

Evans Kinoti M'Rithaa  - 0. 75 acres jointly

(b) L.R. Mwimbi/Chogoria/25

Johnson Nkoge Riungu   - whole

5. The petitioner's proposal on the distribution of the estate elicited some  protest from Kimathi Rithaa, a grandchild to the deceased who filed an  affidavit of protest sworn on 17th March 2018.  In his affidavit the protestor  listed the following as dependants:-

(i) Mwandiki M'Rithaa

(ii) Johnson Nkonge Riungu

(iii) Eliphas Nyaga M'Rithaa

(iv) Kinyua M'Rithaa (deceased) left behind Eliatha Njagi Kinyua and Dickson Murithi Kinyua).

(v) Kithuci M'Rithaa (deceased left behind Mugendi Kithuci).

(vi) Betty Wanja Njagi

(vii) Rosebeth Kanjiru M'Rithaa

(viii) Grace Ithiru M'Rithaa

(ix) Caroline Kangai

(x) Ann Kinga

(xi) Dorothy Ruguru

(xii) Ncuguni M'Rithaa

The protestor has also listed the following as dependants:-

a. Kimathi M'Rithaa  - son to Ann Nkinga and grandson to deceased.

b. Evanson Kinoti  - son to Dorothy Ruguru

c. James Muchunku   - son to Ncuguni M'Rithaa

d. Mugendi Kithuci  - Great grandson of deceased.

6. The protestor has deposed that the petitioner's proposed mode of distribution  is neither equal nor equitable citing that Ncuguni Rithaa has been left out.   He further contends that he should be given a share independent from her  mother's (Ann Nkinga) share.  He proposes to have the estate distributed as  follows:-

(a) L.R. Mwimbi/Chogoria/530- 19. 5 acres

(i) Mwandiki Rithaa   - 1. 63 acres

(ii) Dorothy Ruguru   - 1. 63 acres

(iii) Eliphas Nyaga M'Rithaa  - 1. 63 acres

(iv) Eliatha Njagi Kinyua  - 1. 63 acres jointly

Dickson Murithi Kinyua

(v) Mugendi Kithuci   - 1. 63 acres

(vi) Kimathi Rithaa   - 1. 63 acres

(vii) Betty Wanja Njagi   - 1. 63 acres

(viii) Evans Kinoti   - 1. 63 acres

(ix) James Muchunku   - 1. 63 acres

(x) Ann Nkinga    - 1. 63 acres

(xi) Rosebeth Kanjiru M'Rithaa - 1. 63 acres

(xii) Johnson Nkonge   - 1. 57 acres

(b) L.R. Mwimbi/Chogoria/512 - 4. 90 acres

(i) Johnson Nkonge Riungu  - 0. 06 acre

(ii) Grace Ithiru M'Rithaa  - 1. 63 acres

(iii) Ncuguni M'Rithaa   - 1. 63 acres

(iv) Caroline Kangai   - 1. 63 acres

7. The protestor has justified the above proposal on grounds that the deceased 3  grandchildren namely Kimathi Rithaa, Evans Kinoti and James Muchunku  were dependants within the meaning of Section 29 (2)of the Law of  Succession Act and that the deceased had given them a share of land where  they are now settled.  He has further deposed that though her mother Ann  Kinga is married, the person who married her is not his father and that is  why he was shown where to settle by the deceased herein.

8. At the hearing of the protest herein, Kimathi M'Rithaa, the protestor herein  reiterated that he had always lived with the deceased even after his mother  Mary  Nkinga was married as he was left to stay with the deceased herein as  his grandfather.  He further claimed that he was taken to school by the  deceased and that when the rite of passage came, the deceased made the  arrangements for him to be initiated and go through the rite of passage.

9.  According to the protestor the deceased gave him 1 acre out of parcel  No.530 and 1 3/4 acre out of parcel No. 25.  Under cross-examination, the  protestor stated that his mother should not be given a share because  according to him, she does not need it.  He also conceded that his mother  Mary Nkinga had not filed any protest to the proposed mode of distribution  but denied being a cause of differences in the family.

10. The petitioner on his part testified that he was a son to the deceased and the  appointed administrator in this cause.  He testified that the protestor has  always been quarrelsome and even differed with the deceased when he  demanded to be given a portion of land and threatened to take him to court  in 2009.  He however conceded that the protestor has lived in the estate all  his life.  He further stated that Johnson Nkonge had been told to go and  occupy parcel No.25 and that all the family members agreed to the  arrangements.  It was his evidence that the deceased left behind 12 children   2 of whom are now deceased.  He named the deceased children as;

(i) Kinyua Rithaa  &

(ii) Kithuci M'Rithaa

He further clarified that the late Kinyua left behind Njagi and Murithi whom  he had catered for in his proposed mode of distribution.

11. This court has considered the protest filed on the proposal given by the  petitioner on how the estate of the deceased should be distributed.  I have  also considered the petitioner's case and the written submissions made  through learned counsel Mr. Mutani. I have also considered the protestor's  final written submission through Ms I.C Mugo & Co. Advocates.

12. The main issues in this matter are as follows:-

(i) Whether the protestor is a dependant within the meaning of  Section 29(b) and if he should be considered for distribution exclusive of her mother.

(ii) Whether there are other beneficiaries locked out in the petitioner's proposed mode of distribution and what is  applicable in distribution of the estate herein.

13. There is no much dispute as to whether the protestor herein Kimathi  M'Rithaa is a dependant within the meaning of Section 29(b) of the Law of  Succession Act.  This is because the petitioner himself in his evidence  agreed with the protestor's claim that he grew up in the estate and has been  living in the estate of the deceased since he was born.  This court finds that  based on the evidence tendered he is a dependant within the meaning of  Section 29(b) of the Act.  The deceased took care of him and maintained but  as whether he should get a separate share of land independent of her mother,  is an issue that this court shall determine shortly.

14. The evidence tendered before this court shows that the following are  dependants left behind by the deceased or who survived the deceased.  They  are as follows namely:-

(i) Mwandiki Rithaa   - son

(ii) Johnson Nkonge   - son

(iii) Eliphas Nyaga M'Rithaa  - son

(iv) Eliatha Njagi Kinyua

Dickson Murithi Kinyua  left behind by Kinyua M'Rithaa  -late son of the deceased

(v) Mugendi Rithaa    - Grandson to deceased left  behind by Kithuci  M'Rithaa.

(vi) Betty Wanja Njagi

(vii) Rosebeth Kanjiru M'Rithaa

(viii) Grace Ithiru M'Rithaa

(ix) Caroline Kangai

(x) Ann Nkinga

(xi) Dorothy Ruguru

(xii) Kimathi M'Rithaa   - Grandson to the deceased.

(xiii) James Muchunku  - Grandson to deceased and son  to Kithuci M'Rithaa  (xiv) Ncuguni M'Rithaa

15. The estate of the deceased in this cause comprises the following properties  namely:-

(i) L.R Mwimbi/Chogoria/530 - 7. 80 Ha or 19. 4 acres

(ii) L.R. Mwimbi/Chogoria/25  - 0. 544 ha or 1. 33 acres

Total acreage     20. 43 acres

16. This court has looked at the proposal made by the petitioner and finds that  they are none of the beneficiaries listed above who have not been catered for  save for Ncuguni M'Rithaa.

This court finds same for excluding Ncuguni M'Rithaa that the petitioner's  proposed mode of distribution is all  inclusive.  The only question posed is  how can the estate of deceased herein be distributed fairly to all the  beneficiaries?

17. In this cause, these are no surviving spouse(s).  It is also apparent that  parties have not agreed on how the estate should be distributed because had  they agreed as put forward by the petitioner/administrator then a consent to  that effect would have been filed and this court would have adopted the  same when confirming the grant issued herein.  However that is not the case  here and the only option for distribution in such instances is to resort to the  relevant provisions of the law.  As I have observed above, where there  are  no surviving spouse(s), Section 38 of the Law of Succession Act applies.  That section provides that an estate of a deceased person dying intestate  without a surviving spouse should be distributed equally among the  surviving children.

The deceased in this cause had 12 children 2 of whom are deceased but left  behind children.  They are as follows: -

(i) Mwandiki M'Rithaa

(ii) Johnson Nkonge Riungu

(iii) Eliphas Nyaga

(iv) Betty Wanja Njagi

(v) Rosebeth Kanjiru M'Rithaa

(vi) Grace Ithiru M'Rithaa

(vii) Caroline Kangai

(viii) Ann Nkinga

(ix) Dorothy Ruguru

(x) Ncuguni M'Rithaa

(xi) Late Kinyua M'Rithaa- (deceased) left behind Eliatha Njagi      and Dickson Murithi.

(xii) Late Kithuci M'Rithaa - (deceased) left behind Mugendi      Kithuci.

18. The grandchildren namely Dickson Murithi Kinyua, James Muchunku,  Kimathi Rithaa and Evans Kinoti are also entitled to a share but their share  shall flow from what their parents (children of the deceased) gets in the  distribution to ensure that the distribution is fair and equitable to all the  dependants without anyone getting unfair advantage over the other  dependants.   In any case, a grandchild or any dependant under Section  29(b) cannot also  claim the same or equal share with a dependant described  under Section 29(a) of Law of Succession Act.Their entitlement to the  estate cannot be equal to the entitlement of dependants under Section 29(a) of the Act.

19. In view of the foregoing this court finds that the estate of the deceased  should be divided equally among the 12 children of the deceased named  above. Which means that each child shall get approximately 1. 7 acres each.   The upshot of this is that the grant issued to the administrator on 8th March  2016  is hereby confirmed and the estate shall be distributed as follows:-

(a) L.R Mwimbi/Chogoria/530

(i) Mwandiki Rithaa    - 1. 7 acres

(ii) Eliphas Nyaga M'Rithaa  - 1. 7 acres

(iii) Johnson Nkonga Riungu  - 0. 45 acres

(iv) Eliatha Njagi Kinyua

Dickson Murithi Kinyua    - 1. 7 acres jointly

(v) Dickson Mugendi Kithuci - 1. 7 acres

(vi) Ncuguni M'Rithaa

James Muchunku M'Rithaa  1. 7 acres jointly

(vii) Betty Wanja Njagi   - 1. 7 acres

(viii) Rosebeth Kanjiru M'Rithaa - 1. 7 acres

(ix) Caroline Kangai   - 1. 7 acres

(x) Ann Nkinga

Kimathi M'Rithaa   - 1. 7 acres equal share

(xi) Dorothy Ruguru

Evans Kinoti M'Rithaa  - 1. 7 acres jointly

(xii) Grace Ithiru M'Rithaa  - 1. 7 acres

(b) L.R Mwimbi/Chogoria/25

Johnson Nkonge Riungu   - whole

This being a family matter I make no order as to costs.

Dated, signed and delivered at Chuka this 17th day of December, 2018.

R.K. LIMO

JUDGE

17/12/2018

Judgment signed, dated and delivered in the presence of parties and Mugo for protestors and Mutani for petitioner.

R.K. LIMO

JUDGE

17/12/2018