1.Daniel M’Murithi M’Mwanirwa, the deceased herein died on 10th April, 2002 survived by the following beneficiaries:-a)Stephen Ngure Murithi - sonb)Dorcas Karambu Kithinji - daughterc)Rael Karimi M’Ikira - daughterd)Samuel Kiruki Murithi - sone)Andrew Mbaya M’Murithi – sonf)David Muguna Kimathi – grandsong)Daniel Mutuma Kimathi - grandsonh)Dorine Mwendwa - granddaughter
2.The estate of the deceased comprised of L.R No. Kibirichia/Kibirichia/2592.
3.The petitioner was issued with grant of letters of administration intestate on 16/10/2015. He thereafter filed summons for confirmation of grant on 14/6/2022 where at paragraph 5 of his affidavit in support, he has proposed that Samuel Kiruki Murithi should get 100 ft × 50 ft, Daniel Mutuma Kimathi and David Muguna Kimathi should get ½ acre each, Dorcas Karambu Kithinji, Dorine Mwendwa, and Stephen Ngure M’Murithi should get 1 acre each while he gets the lion’s share of 1½ acres.
4.In his affidavit of protest dated 3/10/2022, the protestor terms the petitioner’s proposed mode of distribution as selfish and contrary to their agreement as a family. He avers that the deceased had expressed that his land should be equally shared amongst his children and his grandchildren to get ½ share each. He proposed that Stephen Ngure M’Murithi, Dorcas Karambu Kithinji, Samuel Kiruki Murithi and Andrew Mbaya M’Murithi got 1 acre each while David Muguna Kimathi, Daniel Mutuma Kimathi and Dorine Mwendwa got ½ acres each. He avers that his proposed mode of distribution has taken into account the peaceful co-existence among the beneficiaries and the intentions of their deceased father.
Statements
5.In his further statement dated 14/9/2023, the petitioner contends that he was allocated a bigger share of the estate property because the other beneficiaries got other bequests from the deceased. He has exhibited family minutes of the family meeting held on 6/11/1999 where the deceased expressed his wishes of how the estate property should be distributed.
6.Doreen Mwendwa, Stephen Ngure and Rael Karimi filed their respective statements dated 4/4/2024 in support of the petitioner’s proposed mode of distribution.
7.The protestor filed his statement on 7/9/2023 in support of his protest. He contends that all the children of the deceased reside on the estate property which they have developed.
Oral Evidence
8.Samuel Kiruki Murithi the protestor herein testified that,“I filed a statement on 7th September, 2023. I pray that the court adopts the statements as my evidence in court. I have given a copy to the Petitioner. The statement is the truth about the land was distributed by our father. My father distributed the first portion of the land and left the portion which is under dispute before the court. I have search documents. I took and gave to the Petitioner.”
9.On cross examination, he stated that,“I am your brother, you are my younger brother. It is true that I selected you to be our administrator at the family meeting on succession. I did not tell you that the succession will be done in accordance with my wishes. I did not tell you that the chief was on our side and we would do what we wishes in the succession. Do you remember what our father told us about the remaining piece of land? Our father told us that he had shared the land and the balance was to be shared as we had done. It was to be shared equally among all the children. It was 4 brothers, 2 sisters and 1 grandchild. It was to be equal shares. It was only my sister Rael Karuri who indicated she did not want to take her share. The grandchild was to get ½ acre. Who is the father to the grandchild? I do not know. Are there any will writing that our father left about you and that child? There were writing which were written but they were just our discussions. It involved me and the child and other discussions. I put it to you that the discussion was about your other 2 children who you had refused to accept as yours? Doreen Mwendwa and Patrick Maingi. I had discussion. I said those are not my children. I put it you had the discussion had been just before the clan and you refused and therefore our father took it and decided to give in dispute before the court today? I will not object to that because our father said they should get a share. But it was a portion for purposes of building a house only. I was a small portion. Do you remember that the clan elders wanted to distribute the land and they gave you 50×100 plot but when they wanted to distribute houses did not fit and they measured 60×115? Those were earlier matters not discussion. I agree there were issues of land measurement but earlier before I had constructed right there - a house of 9 rooms where our father gave us land. Our father had said he would not displace anyone. My brothers said that I should leave and go where land given. I refused and told then I had no capacity to relocate that is why they were measuring the size of the land so that I do not leave to go to the other land. [Can I request the court to visit the land to see that you fenced off the place you got your share?] It is true I have fenced off the area that I got from my father. [Do you recall that you told me that you will disturb us with court matters until we die?] I have never told you that. Do you agree to DNA test? I would agree to a DNA testing.”
10.PW1 Andrew Mbaya M’Murithi adopted his statement dated 14th September, 2023 as his evidence in chief.
11.On cross examination, he stated that,“Yes, I am your younger brother last born. You appointed me as administrator of the Estate of our father. I gave you a plot 60×115 feet. (Each of us should have had 1 acre each and the remainder to Dorine Mwendwa) – It is not true. The land belongs to our father. Our father had sub-divided the land. He had shown us how to sub-divide the land. Why did you give me a plot 60×115? I gave you the plot because our father had said that 1 acre should be given to Dorine, your daughter whom you rejected. There was another child Patrick Maingi son to you who died after taking poison and he was buried in the 1 acre. The 1 acre was given to Dorine. Our father had said that the 1 acre should be given to the 2 children. Our father is the one who gave you 60×115 feet. Do you know I have other children? Yes, you have other children. I could not bring the children because you have not rejected them o talked about those because our father had said they should be given. You have given the children who are not mine to inherit. It is not true. It is our father. Why do not you want me to get my share as you have got? It is not me. It is our father who is also your father. The land belongs to our father. Did not our father say that we should have shares equally in the first shamba Tharakwen/Kibiricia/2592? Our father sub-divided the land only his children. What is before the court is dispute on the portion that remained for himself. He said it should be given to Doris Karambu 1 acre, Stephen Mburi, Andrew Mbae, Dorine (daughter of the petitioner) and Naftali Kimathi. It is 5 ½ acres plot. The ½ is where the plot of 60×115 to be given to you the protestor.”
12.In re-examination, he stated that,“I pray to court to visit the site as the land is sub-divided. I should also pray for DNA on Dorine to establish paternity by the protestor.”
13.PW2 Rael Karimi testified that,“I do not know how to read or write. I am 1940 born. Andrew Mbaya is my last born brother. I have 4 brothers and 1 sisters. Total six children. Samuel Kiruki protestor is my brother. He is older than Mbaya. Mbaya is the follower of Samuel Kiruki they follow me. I am their eldest in the family. I wish the court to know that my two brothers cannot respect what they are told. They are fighting over property for a different person. It is our father who divided the land. They each have land which they were given by our father. I do not have any land. They are fighting over land which our father said belonged to the respective persons. I support the distribution as shown in my statement. Why Kiruki gets 115×60 feet? He refused to hear what our father said that he did not built on the portion where he has built. He is staying there by force. Doreen’s brother was buried on this land. Doreen is my niece and daughter to my brother Samuel Kiriki who rejects her.”
14.On cross examination, she stated that,“Why should Mbaya get 1 ½ acre? He was given the portion by his father. (Was there any witness when father gave the land? The sons of the petitioner were there. When father gave her land. I was not there but the sons know. The sons are Andrew, Stephen Ngure, Kiruki and the 4th is deceased but he was there when father gave out the land. He as Naftali Kimathi. Is there a more important child who should be given more share? The father loved all of them but there is one who has greed and is almost insane. Who has tamaa (greed?) That a person who refuses to hear the position of our father. He is the one who has troubled me. I sucked you when your mother was very sick. Have you ever attended a meeting by our father? I was very sick. I never attended the meetings. Our father told his sons that I was unwell they should be giving me food crops. I have my own shamba but I could not cultivate. You are the greed person? I sucked you when you were small and you grew up very well. It is a curse because our father had distributed the land. You were given your share and with the others. You have refused to move from where you have constructed your house. Which Road? Where you have refused to move the father told you to stay and he gave around across but the portion you were given is further away. Why did father say that I should stay there? The owner has divided the land and he is deceased. It is a curse if one goes against his wishes.”
15.In re-examination, she stated that,“It is a curse to follow up on land which is duly given by a deceased person. We are all siblings brothers and sisters of the same mother and father.”
16.PW3 Stephen Ngure testified that,“I am 82 years old. I was born in Rael is our elder sister. Kiruki Samuel is younger than me. Andrew Mbaya is our last born. We are 6 children 4 sons and 2 daughters. I agree with the proposal by Andrew Mbaya I am the one who wrote the documents. I have not sub-divided the shamba. I am the one who told him what to write. It is our father who divided the land. Kiruki has another parcel of land. It is a six acre piece just next to where we stay. I also have another portion of 6 acres elsewhere on the same shamba. Our two other brothers have land there. Naftali who is our brother has 9 ½ acres. Mbaya has 5 ½ acres.”
17.On cross examination, he stated that,“You are the one who wrote that Andrew should get what share? I have said he should get 1 acre.”
18.PW4 Doreen Mwenda testified that,“I am 38 years old. I was born in 7th October 1992. Statement dated 4th April, 2024. I testify that the portion of land was given by our grandfather who had adopted me and my brother Patrick Maingi. I was given 1 acre by my grandfather. My brother died without a family in 2014 this was after our grandfather died in 2002.”
19.She was not cross examined.
Analysis and Determination
20.The sole issue for determination is how the estate property should be distributed.
21.The protestor stated on cross examination that,“Our father told us that he had shared the land and the balance was to be shared as we had done. It was to be shared equally among all the children. It was 4 brothers, 2 sisters and 1 grandchild. It was to be equal shares. It was only my sister Rael Karuri who indicated she did not want to take her share. The grandchild was to get ½ acre. Do you remember that the clan elders wanted to distribute the land and they gave you 50×100 plot but when they wanted to distribute houses did not fit and they measured 60×115? I agree there were issues of land measurement but earlier before, I had constructed right there - a house of 9 rooms where our father gave us land. Our father land said he would not displace anyone. My brothers said that I should leave and go where land given. I refused and told then I had no capacity to relocate that is why they were measuring the size of the land so that I do not leave to go to the other land. Can I request the court to visit the land to see that you fenced off the place you got your share? It is true I have fenced off the area that I got from my father.”
22.The petitioner stated on cross examination that,“Why did you give me a plot 60×115? I gave you the plot because our father had said that 1 acre should be given to Dorine, your daughter whom you rejected. There was another child Patrick Maingi son to you who died after taking poison and he was buried in the 1 acre. The 1 acre was given to Dorine. Our father had said that the 1 acre should be given to the 2 children. Our father is the one who gave you 60×115 feet. Did not our father say that we should have shares equally in the first shamba Tharakwen/Kibiricia/2592? Our father sub-divided the land only his children. What is before the court is dispute on the portion that remained for himself. He said it should be given to Doris Karambu 1 acre, Stephen Mburi, Andrew Mbae, Dorine (daughter of the petitioner) and Naftali Kimathi. It is 5 ½ acres plot. The ½ is where the plot of 60×115 to be given to you the protestor.”
23.His testimony was corroborated by that of PW2 and PW3 who affirmed that the deceased had distributed the estate property to his children and grandchildren. PW2 testified that,“It is our father who divided the land. They each have land which they were given by our father. I do not have any land. They are fighting over land which our father said belonged to the respective persons. I support the distribution as shown in my statement. Why Kiruki gets 115×60 feet? He refused to hear what our father said that he did not built on the portion where he has built. He is staying there by force. Doreen’s brother was buried on this land. Doreen is my niece and daughter to my brother Samuel Kiriki who rejects her.” On cross examination, she stated that, “Why should Mbaya get 1 ½ acre? He was given the portion by his father. Was there any witness when father gave the land? The sons of the petitioner were there. I was not there but the sons know. The sons are Andrew, Stephen Ngure, Kiruki and the 4th is deceased but he was there when father gave out the land. The father loved all of them but there is one who has greed and is almost insane. Who has tamaa (greed?) That a person who refuses to hear the position of our father. He is the one who has troubled me.”
24.PW3 testified that,“I agree with the proposal by Andrew Mbaya I am the one who wrote the documents. I have not sub-divided the shamba. I am the one who told him what to write. It is our father who divided the land. Kiruki has another parcel of land. It is a six acre piece just next to where we stay. I also have another portion of 6 acres elsewhere on the same shamba. Our two other brothers have land there. Naftali who is our brother has 9 ½ acres. Mbaya has 5 ½ acres.”On cross examination, he stated that,“You are the one who wrote that Andrew should get what share? I have said he should get 1 acre.”
25.PW4 led uncontroverted evidence that she had been given 1 acre of the estate property by the deceased. She testified that,“I testify that the portion of land was given by our grandfather who had adopted me and my brother Patrick Maingi. I was given 1 acre by my grandfather.”
26.The court finds that the petitioner has proved on a balance of probabilities that the estate property ought to be distributed as he has proposed at paragraph 5 of the affidavit in support of the summons for confirmation of grant. That mode of distribution is confirmed by PW2, PW3 and PW4, who are some of the beneficiaries thereto.
27.The court finds the protestor’s mode of distribution to be manifestly inequitable because it is fuelled by greed and egocentrism. For that reason, the protestor’s protest dated 3/10/2022 is without merit and it is dismissed.
28.It is admitted that the protestor was given 115 × 60 ft by the deceased, and not 100 × 50 ft proposed by the petitioner. The justification for the petitioner’s lion’s share is that the other beneficiaries got other bequests from the deceased.
Orders
29.Accordingly, for the reasons set out above, the grant issued to the petitioner on 16/10/2015 is confirmed in the following terms:a.Samuel Kiruki Murithi to get 115 ft × 60 ft.b.Daniel Mutuma Kimathi and David Muguna Kimathi to get ½ acre each.c.Dorcas Karambu Kithinji, Dorine Mwendwa, and Stephen Ngure M’Murithi to get 1 acre each.d.Andrew Mbaya M’Murithi to get the balance.e.The above distribution shall so far as practicable take into account the prevailing occupation by the beneficiaries.f.There shall be liberty to apply.
30.There shall be no order as to costs.Order accordingly.
