In re Estate of Jonathan Musyoki Mutisya (Deceased) (Probate & Administration 458 of 2011) [2022] KEHC 11328 (KLR) (21 July 2022) (Ruling)
Neutral citation:
[2022] KEHC 11328 (KLR)
Republic of Kenya
Probate & Administration 458 of 2011
MW Muigai, J
July 21, 2022
IN THE MATTER OF THE ESTATE OF JONATHAN MUSYOKI MUTISYA (DECEASED)
Between
Joyce Mwikali Musyoki
Administrator
and
Ann Njeri Musyoki
1st Protestor
Susan Musyoki
2nd Protestor
Ruling
Background
1.The deceased herein Jonathan Musyoki Mutisya died intestate on November 13, 2010 as per death certificate No xxxxxx.
2.The Chief’s letter dated May 27, 2011 from Kalandani Location indicates that the deceased left behind a widow (Ann Njeri Musyoki) and three (3) children namely; Reuben Mutisya Musyoki, Brian Githuku Musyoki and Peninah Washu Musyoki as his beneficiaries.
3.Ann Njeri Musyoki petitioned for grant of letters of administration intestate on November 13, 2010 and annexed the following documents:(1)Death certificate serial number xxxxxx(2)Chief’s letter dated May 27, 2011.
4.The deceased left the following properties:-(a)Matungulu/Sengani 3368, 1516, 3023, 2804,3379,1522, 3370(b)Barclays Queensway House Branch a/c No 094xxxxx20, 094xxxxx97,094xxxxx02(c)KCB Tala Branch A/c No 110xxxxx89(d)Share certificate No xxxxxx – Kenya Airways(e)Kenya Airways staff Retirement benefits Scheme(f)Kwa Matangi FCS Ltd No 2596(g)Shares at Matungulu Farmers Co-op Society limited(h)Share at Kamulu Housing Co-Operative Society Plot No 1923(i)Share at Kayatta Farmers Co-op Society(j)Share at Matungulu House in Nairobi under Matungulu Co-op Society limited(k)Kamulu housing plot No 259 on LR No 8484(l)Complete stall No 394 – Eastleigh market Nairobi(m)Ngei Phase 2 Plot No 259(n)Matungulu Plot No 2 within Kangundo Town Council
5.After gazettement of November 13, 2010, the Grant of letters of Administration was issued by this Court on October 11, 2011 to Ann Njeri Musyoki.
6.Summons for Confirmation of grant dated May 28, 2012 was filed together with the Consents from the beneficiaries.
7.The Certificate of Confirmation was issued by this Court on July 13, 2012 to Anne Njeri Musyoki.
Summons for Revocation of Grant
8.Summons for revocation of grant dated September 12, 2013 filed on September 17, 2013 by Joyce Mwikali and 8 others and they sought the following orders:-(a)That the grant confirmed on July 13, 2012 be revoked on account of concealment of the Applicants’ interest in the estate of the deceased.(b)That the costs of this application be awarded to the Applicants.
9.The application was based on the following grounds:(a)That the applicants are children of the deceased of the 1st wife who is also deceased.(b)That the petitioner concealed this material fact when obtaining the grant.(c)That the grant was obtained by means of deliberate and untrue allegations.(d)That the Petitioner failed to include the Applicants who are the dependants of the estate when obtaining grant.
10.The Chief’s letter dated December 6, 2011 from Kalandini location stated that the deceased hailed from Matakutha sub-location, Kalandini Location in Matungulu District; that he was survived by two wives – Agnes Mwelu Musyoki 1st wife (deceased) and Ann Njeri – 2nd Wife and their children.
11.This Court on its Ruling of December 20, 2019 allowed the Application dated September 12, 2013 and revoked the confirmed grant dated July 13, 2012. The Court further granted the family of the deceased 30 days to nominate Administrators who should not exceed four and in default this Court was to proceed to appoint the Administrators.
Chamber Summons Dated September 25, 2019
12.The Applicants filed the application dated September 25, 2019 and sought the following orders:-(a)That this Court order that all properties contained in certificate of confirmation of grant dated July 30, 2012 and revoked on August 20, 2018 do revert to the name of the deceased and any certificates of title issued pursuant to the said grant and in the name of the Petitioner/Respondent be revoked.(b)That a restriction order be issued prohibiting sale or transfer of properties contained in the impugned certificate of confirmation of grant dated July 30, 2012 until further representation of the estate of Jonathan Musyoki Mutisya is made.(c)That this Court appoint Susan Musyoki and Joyce Mwikali Musyoki as administrators of the estate of the late Jonathan Musyoki Mutisya to represent the 1st household and Ann Njeri Musyoki to represent the 2nd House as per the ruling dated December 20, 2018.
13.On 6/03/2019 this Court issued a restriction order prohibiting sale or transfer of properties contained in the impugned certificate of confirmation of grant dated July 30, 2012 until further representation of the estate of Jonathan Musyoki Mutisya is made until further orders are made.
14.On April 2, 2019 a fresh grant was issued to Joyce Mwikali Musyoki and Ann Njeri Musyoki.
Replying Affidavit By The Petitioner/Respondent
15.The petitioner filed an affidavit sworn on June 19, 2019 and deposed as follows:-(a)That she undertook the succession herein so that she would protect the estate and interests of her deceased husband to protect the same from wanton acts of destruction.(b)That the Petitioner recognizes the 1st, 2nd, 3rd, 4th & 5th Applicants as children of the late Jonathan Musyoki and she is willing to transfer to them a fair share of the estate.(c)That the 6th, 7th, 8th and 9thApplicants are grandchildren of the deceased and thus they do not have locus standi.(d)That the allegations that she had intended to dispose of the properties herein are not true as she has been cultivating and sharing the proceeds with the Applicants herein.
Further Affidavit by the Applicant
16.That the applicant filed an affidavit sworn on October 1, 2019 deposing as follows:-(a)That the petitioner/respondent took letters of administration without involving the applicants and also went ahead and withdrew all the monies from bank Accounts immediately upon petitioning for letters of administration.(b)That the applicant do not have any objection of having the 6th, 7th, 8th and 9th applicants excluded as applicants.(c)That the petitioner/respondent has been benefiting from the estate of the deceased alone.(d)That the application of February 25, 2019 should be allowed in its entirety to enable the Applicant file summons for confirmation of grant.
Summons For Confirmation Of Grant
17.Summons for confirmation of grant dated November 17, 2020 filed on 1/12/2020 together with a list of the beneficiaries and the assets of the deceased herein as well as the proposed mode of distribution.
18.The Amended Summons dated April 26, 2021 was filed on April 29, 2021.
Affidavit In Protest
19.Ann Njeri Musyoki (1st protestor herein) swore an Affidavit in protest dated on June 14, 2021 and deposed as follows;(a)That she was the 2nd wife to the deceased and the children of the 2nd house/family who are three (3) are well captured in her affidavit in support of the summons of confirmation of grant.(b)That she has entered this protest on behalf of her three children(c)That the applicant should attach proof of existence of all the properties claimed to belong to the estate for the deceased to ascertain their existence and reach a just and equitable distribution of the estate of the deceased.(d)That the petitioner/respondent is opposed to the mode of distribution for the applicant failed to take into account that the deceased and the petitioner purchased some of the aforementioned parcels of land without involving the 1st house.(e)The petitioner/respondent attached her proposed mode of distribution.
2nd Protestor’s Affidavit of Protest to Amended Summons for Confirmation of Grant and Reply to 1st Protestor’s Affidavit of Protest:
20.Susan Musyoka filed an affidavit in protest dated June 24, 2021 deposing that she is the eldest child of the deceased herein.
21.That she is opposed to the amended summons together with the 1st protestor’s proposed mode of distribution as it is not equitable and it discriminates against the 1st household.
22.That the properties should not be divided between the 2 families equally as the 1st house has 5 surviving heirs while the 2nd house has 4 surviving heirs.
23.That some properties are bigger in terms of acreage than the others and therefore cherry picking by the administrators will not ensure proper distribution.
24.That Matungulu/Sengani/3379 was the 2nd Protestor mother’s matrimonial home and the 1st protestor has no basis of demanding the same.
25.That Plot Ngei Phase 2 Plot No 259 was owned jointly by the 2nd protestors Mother and the deceased herein.
26.That Matungulu/Sengani/3370 is a burial ground and the 1st protestor has no basis of laying claim over the same.
27.That this court should order issue for bank statements to be availed and the 1st protestor be compelled to avail the same.
28.That property Number Matungulu/Sengani/2711 forms part of the estate, the same was fraudulently transferred by the 1st protestor to her names after the demise of the deceased. The same should revert to the estate for distribution.
Response to the 2nd Protestors Affidavit In Protest
29.The petitioner filed a response on July 12, 2021 to 2nd protestors affidavit in protest sworn and filed on June 14, 2021 and stated as follows:-(a)That the 2nd administrator and the 2nd protestor to provide proof of the other properties in the amended summons for confirmation of grant of which there is no proof of their size and existence.(b)That Parcel No Matungulu Sengani/3370 which is the family burial ground to be registered in the name of the petitioner as it is adjacent to and forms part of the petitioner matrimonial home compound where she resides with her family.(c)That the land titles Nos Matungulu Sengani/2804, 3379, 3370 & 3368 were registered in the name of the deceased during the subsistence of their marriage together with the petitioner and were purchased long after the death of the 2nd protestor’s mother.
30.Joyce Mwikali Musyoki the 2nd Administrator’s response to the 1st and 2nd Protestors affidavit in protest filed on September 27, 2021 deposed as follows;-(a)That all the ownership documents in the impugned confirmed grant are in the possession of the 1st Administrator Ann Njeri Musyoki.(b)That the deceased herein was the registered owner of Kwa Matangi FCS Limited Share Number 2596. The 1st Administrator used the impugned grant to effect the changes.(c)That the deceased was a member of Tala Housing Member No 543606.(d)That the deceased and 2nd Administrator’s mother were joint owners of property known as Plot No 259 Ngei Phase II.(e)That all the properties except Plot No. 259 Ngei Phase II and the matrimonial property of the 2nd administrator’s mother should be shared pro-rata basis taking into account that the 2nd household represented by the 2nd Administrators has more children.
Written Submissions
2nd Administrator/applicant Submissions
31.It was submitted that the 1st Administrator/1st Protestor without regard to the 2nd household proceeded and withdrew all the funds from the Bank Account of the deceased and transferred all the properties to her name. During this time the 2nd household were not aware that the 1st Administrator/protestor had petitioned for letters of administration without their knowledge. That she had connived with the Area Chief who wrote a letter excluding the 1st household which enabled her to petition for letters of administration intestate.
32.That the 2nd administrator and the other beneficiaries filed summons for revocation of grant dated September 12, 2013 and grant was revoked and a new grant issued jointly on April 2, 2019.
33.That on the 1st Administrator/Protestor response to the amended summons for confirmation she had stated that her permanent home resident is situated at Matungulu/Sengani/3379. She also alleged that the same is also the family burial ground and that she had purchased some of the properties with the deceased without involvement of the 1st household.
34.The following are issues for determination.i.What is the equitable mode of distribution of the estateii.Whether Matungulu/Sengani/3379 and Matungulu/Sengani/3370 should be registered under the 1st Protestor.
35.On what equitable mode of distribution is equitable to the beneficiaries of the estate section 40 of the Law of Succession Act provides that;
36.In the instant case the deceased had two wives. In the 1st household, the 1st wife is deceased leaving behind five children dependants. In the 2nd household, there are four dependants with the 2nd wife being the 1st protestor in this case.
37.The 1st administrator/protestor has not provided any proof that she jointly acquired any properties with the deceased.
38.From the two protests filed in this Court the two main contention is property numbers Matungulu/Sengani/3379 & Matungulu/Sengani/3370. According to the 1st Administrator/Protestor Matungulu/Sengani/3379 is her matrimonial home and has lived there for over 20 years. The 2nd protestor’s evidence is that the Matungulu/Sengani/3370 is the family burial ground and her mother among other relatives are buried on the said property.
39.Reliance was made in the case of Ahmednasir Maalim Abdullahi v Kenya National Highways Authority [2020] eKLR (unreported) the Court stated as follows:-Section 112 of the Evidence Act provides that
40.In the instant case the 1st Protestor claims to have lived on the parcel of land for over 20 years however she has not demonstrated to the Court when she moved to the said property.
1st Administrator/1st Protestor Submissions
41.1st Protestor/1st Administrator submissions dated May 13, 2022 stated that the issue of the rightful beneficiaries of the deceased is not disputed by the parties; That the 1st house has five (5) beneficiaries and the 2nd house has four (4) beneficiaries; that the 1st Administrator/protestor is the only surviving widow of the deceased; that she has been living on the land Parcel No Matungulu/Sengani/3379 a fact the 2nd Administrator and 2nd protestor who are sisters do not dispute hence the 1st Administrator is perfectly entitled to lay claim to the land parcel.
42.That the 1st protestor/administrator being a spouse of the deceased to whom this estate relates did manage to assist in the acquisition of various assets that form part of the estate of the deceased.
43.The 1st Protestor/Administrator maintains that she had purchased Land Parcel Matungulu/Sengani/2715 and that most of the properties in the name of the deceased were acquired jointly by her and the deceased a fact that was not denied by the parties; that the Land Parcel Matungulu/Sengani/3378 & 2711 were transferred to her during the lifetime of the deceased its only that the title deed came out one month after the death of the deceased.
44.It was further submitted that the properties should not be distributed only on the basis that the 1st house has more children than the 2nd house. That there are several factors which need to be taken into account including when and where the assets were acquired. Reliance was made in the case of in High Court Succession Cause No 650 of 2008 – John Mina Gakuo & another v Veronicah Wanjiku Gakuo [2020] eKLR where the court stated;
45.It was further submitted that the 1st protestor/administrator contributed to the acquisition and development of various properties that formed part of the deceased’s estate hence the division of the estate on basis of the number of children of each household would occasion unfairness.
46.That some of the properties on the 2nd administrator amended summons are not subject to distribution for reasons either they do not form part of the estate and or have not been proved to exist at all.
2nd Protestors Submissions Dated May 15, 2022
47.The issues for determination are(1)whether the 1st protestors claims are merited
48.Section 40 of the law of Succession Act provides that;(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.”
49.The 1st Protestor in her proposed mode of distribution is only trying to take from the 1st household what rightfully belongs to the 1st household with claims that she acquired the property together with the deceased. She has claimed that she has lived on property Matungulu/Sengani/3379 for over twenty years and that it is her matrimonial home but has not provided the Court with evidence in support of the same.
50.In the case of Re Estate of the Later Cheriro Chepkosiom (deceased) [2017] eKLR the Court rendered that;
51.Also see the case of Rono v Rono [2015] eKLR – Court of Appeal and in the case of Estate of Samuel Miriti v AIM [2014] eKLR.
52.The 1st protestor did not adduce any evidence in court to prove her claims that she was indeed part owner of any of the properties claimed as to have been belonging to her solely. According to the official searches adduced in Court, all the properties of the deceased were acquired even before the 2nd wife was married.
53.Section 107 of the Evidence Act provides as follows:-(1)“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.
54.It was further submitted that the 1st protestor proposed mode assigns her household with bigger assets that have much more value and leaves the 1st household with smaller assets. Further the mode of distribution is unmerited as it only reeks of greed and malice.
Determination
55.The Court has considered pleadings and written submissions by parties. The task presented to this Court for determination is distribution of the estate of the deceased amongst the beneficiaries who include surviving spouse of the 2nd House and children of the 1st and 2nd Houses.
56.The beginning point is to consider the applicable law; the deceased died in 2010 after commencement of Law of Succession Act. Therefore, the applicable law in distribution of the estate of a polygamous family is Section 40 LSA.S 40. (1)
57.Applying the law to the facts of the instant case; there are rival issues and submissions raised by parties with regard to the proposed mode of distribution in the Summons for Confirmation filed in court.
58.The List of beneficiaries is/are;1st House;Susan MunyokiCaroline MusyokiJoyce MusyokiLilian MusyokiNaomi Musyoki2ndHouseAnn Njeri Musyoki-2ndwife/widowReuben MusyokiBrian MusyokiPeninah Musyoki
59.The 1st Protestor , surviving widow of the deceased challenged the 2nd Protestor, eldest daughter of the 1st house (as their mother Agnes Mwelu Musyoki is deceased) to provide proof of other properties in the Amended Summons for Confirmation of Grant.
59.The 1st Protestor took issue with distribution of LR Matungulu/Sengani/3379 which she states is her matrimonial home where she lived with the deceased and their children for over 20 years. Matungulu/Sengani/3370 is part of burial ground should be registered in her name as it forms part of her matrimonial home.
60.The 1st Protestor submitted that Matungulu/Sengani/2715 is her property she bought it and is not part of the estate of the deceased available for distribution.
61.The 1st Protestor asserted proprietary rights to properties Matungulu /Sengani/2804,3379,3370 & 3368 as these properties though in the name of the deceased were jointly acquired by her and the deceased and were registered long after 2nd Protestor’s mother ‘s death.
62.The 2nd Protestor also claims the matrimonial home LR Matungulu/Sengani/3379 which was their home before their mother died and Matungulu/Sengani/3370 is where her late mother and other relatives are buried. The 2nd Protestor claims more property from the estate as 1st Administrator had more properties during their late father’s life. The 2nd Protestor submitted that 1st Protestor allocated the 2nd family prime properties and left properties of less value to the 1st family.
63.With regard to Bank Accounts, the statements of Account have not been availed to indicate the proceeds and how much the 1st Protestor withdrew while she obtained grant without disclosing the 1st Family, and withdrew funds from the accounts from Bank Accounts and transferred properties to her name. The 2nd Protestor sought the distributions of funds herein to be suspended until actual accounts are availed.
64.From the rival submissions it is incumbent for this Court to ensure as far as possible while applying Section 40 LSA, the distribution of the estate of the deceased to the beneficiaries is fair, just and equitable in the circumstances and not necessarily equal distribution as each case is considered on its own circumstances.
65.In Re Estate of the Late Siwanyang Ngilochi ( Deceased) [2021] eKLR the Court considered the sharing of net estate of an intestate polygamous deceased person, the Court exercises discretion and bears in mind principles of fairness, and equity among the beneficiaries.
66.In Scholastica Ndululu Sura vs Agnes Nthenya Suva (2019) eKLR, the Court observed that blind application of Section 40 of LSA may lead to absurdity and although the Section provides for general distribution of the estate of a polygamous person, the Court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.
67.Therefore, in the instant case for this Court to exercise judicial discretion there must be tangible and cogent evidence by parties as required by Section 107-112 of the Evidence Act, ie he who alleges must prove in the following matters/issues;a)The Land Parcels apart from the numbers, evidence of the acreage, location, date and form of registration/acquisition, developments, occupancy, use are not disclosed so as to aid the Court in arriving at an informed decision on distribution of the deceased’s estate in the following properties that comprise of the deceased’s estate - Matungulu/Sengani 3368, 1516, 3023, 2804,3379, 1522, 3370, 2711, 2715 & 3378.b)The Bank and Accounts of respective Bank Accounts proceeds; if funds available or not;c)Disclosure and proof of proprietary interest (purchase) of property or asset(s) contribution to matrimonial property.d)Proof of Gifts intervivos by the deceased to the beneficiaries and dependants.e)Properties/assets disposed of or in arrears of statutory paymentsf)What forms part of assets that comprise of deceased’s estate and what is excluded either as joint property, own property etc. through evidence.
68.Secondly, the mode of distribution shall be governed by Law of Succession Act in terms of not only Section 40 LSA which deals with a polygamous family but also Section 35 and 38 LSA. This is because as stated in Re Estate of John Musambayi Katumanga (deceased) [2014] eKLR the Court observed;Section 35Where intestate has left one surviving spouse and child or children(1)Subject to the provisions of section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to-(a)the personal and household effects of the deceased absolutely; and(b)a life interest in the whole residue of the net intestate estate:Provided that, if the surviving spouse is a widow that interest shall determine upon her re-marriage to any person.(2)A surviving spouse shall, during the continuation of the life interest provided by subsection (1), have a power of appointment of all or any part of the capital of the net intestate estate by way of gift taking immediate effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date.(3)Where any child considers that the power of appointment under subsection (2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made.(4)Where an application is made under subsection (3), the court shall have power to award the applicant a share of the capital of the net intestate estate with or without variation of any appointment already made, and in determining whether an order shall be made, and if so what order, shall have regard to –(a)the nature and amount of the deceased's property;(b)any past, present or future capital or income from any source of the applicant and of the surviving spouse;(c)the existing and future means and needs of the applicant and the surviving spouse;(d)whether the deceased had made any advancement or other gift to the applicant during his lifetime or by will;(e)the conduct of the applicant in relation to the deceased and to the surviving spouse;(f)the situation and circumstances of any other person who has any vested or contingent interest in the net intestate estate of the deceased or as a beneficiary under his will (if any); and(g)the general circumstances of the case including the surviving spouse's reasons for withholding or exercising the power in the manner in which he or she did, and any other application made under this section.(5)Subject to the provisions of sections 41 and 42 and subject to any appointment or award made under this section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage, of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.Section 38
69.In the absence of these details, the Court will not determine the distribution in the Summons for Confirmation and the Protests at this stage until these further and better particulars are availed preferably through oral/viva voce evidence by Petitioners and Protestors.
Disposition
1.The Summons for Confirmation and Protests shall be heard and determined through vivavoce evidence by Petitioners and Protestors and/or Beneficiaries.
2.Parties to file and exchange Witness Statements and documents within 60 days.
3.Further Mention for Directions shall be on 3/10/2022.
DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 21ST JULY 2022. (VIRTUAL CONFERENCE).MW MUIGAIJUDGE