Discussion and Determination
6.The deceased was polygamous and died intestate.
7.Agnes by the summons dated December 16, 2019 stated the inventory of deceased’s assets are:-a.Muguga/gitaru/133b.Nyandarua/tulaga/462c.Nyandarua/kitiri/264
8.Alice produced two pages unsigned written record of the deceased he allegedly made on; June 15, 1988 in his diary. That record is in Kikuyu language and no translation was provided. This is what she said in regard to that writing:-
9.Agnes further states that each household should remain where they were settled by deceased since they till that land. That the 3rd house, her house, because it was settled on the smallest parcel of land should get 10 acres in Nyandarua/Kitiri/264.
10.Agnes proceeded to give narration of how each house was allegedly settled by the deceased.
11.In respect to 1st house, Agnes stated that this house was settled in Nyandarua/Tulaga/462 (7.4 Ha) in 1967. The 1st house cleared the land and settled outstanding debt over that land. That the 1st house practices animal husbandry on that land as well as till it. That they also installed pipe water in that land.
12.That the widow of the 2nd house was divorced by deceased in 1981. That, the said widow was not settled on land by the deceased. Agnes suggested that the 2nd house be given property Nyandarua/Kiriti/264.
13.Agnes stated that her house, the 3rd house was settled by deceased on Muguga/Gutari/133(3.48 Ha) in 1965. Agnes stated that her household severally “defended the same parcel of land.” That she and her children continued to live on that land where she built permanent house thereon, including tilling and connected the property with electricity and water, and has been carrying on animal husbandry, including planting trees.
14.Further, that the deceased settled the 4th house on Nyandarua/Kitiri/264 in 1983, while 5th house was settled on the same land in 1994. Both household, according to Agnes, paid off a loan connected to this property. That both household have undertaken various activities on the land such as tilling the land, practicing animal husbandry including carrying out various developed thereon. That the deceased’s widows and their children and grandchildren are in occupation of that land.
15.Agnes in her affidavit dated December 16, 2019 stated thus:-
16.Moses filed summons for confirmation of grant dated September 16, 2020. He relied on an affidavit in support and another affidavit that he swore in opposition to summons filed by Agnes.
17.Moses’ deposition are that Agnes was not truthful in her application, he accordingly stated that he was opposed to suggested distribution of Agnes. He deponed further that:-
18.Moses set out the deceased assets as:-a.Nyandarua/kitiri/264 - about 22 ha.b.Nyandarua/tulaga/462 7.40 ha.c.Muguga/gitaru/1333.48 ha.d.½ acre of land Aspodea in Kitiri settlement scheme.e.1 acre at Karima Nandarass.f.1 acre at Ndinda Nandarass.g.5 acres at Nadarass (Kihingo).h.East African Breweries Ltd shares.i.Other shares not revealed the administrators.
19.Agnes by her further affidavit termed the deceased’s affidavit, referred to by Moses as false. She went further to admit that Halima Abdulla was allowed to occupy part of Muguga/Gitaru/133 but that the transaction of sale had not been concluded. She also confirm that she (Agnes) had not interfered with that occupation. She was in agreement that deceased shares be sold and the proceeds be shared equally amongst the beneficiaries.
20.Henry Kariuki Gichuru, by his affidavit sworn on September 6, 2021 proposed distribution be equally; that is Nyandarua/Kitiri/264, Nyandarua/Tulaga/462 and Muguga/Gitaru/133 be shared equally amongst the five houses.
21.Beatrice Mumbi Gathuka was in favour of the proposal and distribution made by Moses.
22.Section 40(1) of Cap 160 provides for distribution of the estate of a polygamous deceased person. It provides thus:-
24.It is clear from that section that it provides the court continues to retain discretion on distribution of an estate of a polygamous deceased. This is what was stated in the case of Kyoa Ndewa v Patrick Mulyungi Ndewa & another(2022) eKLR as follows:-
25.Although Agnes initially denied that the deceased made his intention know on distribution of the estate she later accepted that the deceased did express himself in an affidavit, which affidavit she termed as false.
26.In order to explain the background of the deceased’s affidavit which was revealed by Moses I will proceed by stating what it related to.
27.Agnes sued her deceased husband in Nairobi High Court Civil Case No 484 of 2006 seeking to restrain him from disposing the property she proposed in this succession, it be distributed to her house, being Muguga/Gitaru/133. The deceased responded by an affidavit dated May 29, 2006. Because of the relevance of that affidavit, I will reproduce some portions of it as follows:-
28.It needs to be stated, as seen above, that the deceased in his life time sold part of Muguga/Gitaru/133 to Halima Abdullah Mwenesi this fact is admitted by most beneficiaries whilst others are passive, but do not deny. However, Agnes initially denied but later stated that the said purchaser was in occupation of part of that. Agnes termed what her deceased husband stated in his affidavit as false. Her denial of that sale by deceased is contradicted by her affidavit sworn on May 11, 2006 where in part she deponed.
29.Agnes has argued that the purchaser not being a beneficiary was not entitled to be distributed any part of the deceased’s estate. Agnes has erred to so argue. The purchaser was sold the land by the deceased in his life time. This is evidenced by a hand written agreement between the deceased and the purchaser, which although undated is singed by both the deceased and the purchaser. That agreement acknowledged that there was a previous formal agreement of sale. It also acknowledge that the purchaser had paid deceased Kshs.910,000 and remained with a balance of Kshs.990,000 which was to be paid once a title was issued in the name of the purchaser. That agreement permitted the purchaser to henceforth take possession of the land purchased. It is useful to consider the case of In re Estate of Joseph Mutua Munguti (Deceased) (2018) eKLR as follows:-
30.On how the deceased estate will be distributed, I will consider the deceased’s wishes which I believe are best captured in the distribution proposed by Moses. Further, the affidavit evidence of deceased will be received by this court as provided under section 34 of the Evidence Act, Cap. 80. That section is in the following terms:-
31.That affidavit is therefore part of the evidence to assist me determine distribution of this estate.
33.The wishes of deceased shall be taken into account.
34.Additionally, I accept what was stated by Henry, that Muguga/Gitaru/133 is a valuable property. I believe that is why Agnes wishes it be distributed to her house. Equity would therefore require that each house does get a portion of that property.
35.The request that the deceased’s share be sold and proceeds be shared equally finds favour with me.