b. How the estate should devolve:
72.There is no dispute that the deceased was polygamous. He had two wives. The first one was Grace and the second one was Priscillah.
73.Both wives were blessed with children. Grace had 8 children whereas Priscillah had 7 children.
74.The 1st wife (Grace) had the following 8 children: -i.James Kamau Muiruri (now Deceased);ii.Waweru Muiruri Kamau;iii.Gichuru Muiruri;iv.Gachie Muiruri;v.John Githaiga;vi.Simon Njoroge Muiruri;vii.Jane Wangui Kariuki;viii.Nancy Nyambura Muiruri.
75.The 2nd wife (Priscillah) had the following 7 children: -i.Ann Wangui Muiruri;ii.Jane Mwihaki Muiruri;iii.Benard Kamau Muiruri;iv.Kenneth Munga Muiruri;v.Monica Nyambura Muiruri;vi.George Gichuru Muiruri;vii.John Muna Muiruri.
76.The two houses filed their respective proposals on their preferred modes of distribution of the properties.
77.In urging the court to adopt its mode of distribution, Priscillah took the court through how the properties were acquired in Ndeiya, Limuru and Kitale. Since there was no meaningful opposition to such background evidence, this court shall be accordingly guided by such, going forward.
78.The position taken by Grace was that the properties be equally shared between all the beneficiaries.
79.On her part, Priscillah initially relied on her filed mode of distribution. It was her position, which she reiterated in Court, that the Moi’s Bridge commercial Plot and Plot No. Waitaluk/Kapkoi Block 12/Chamgei/160 which measured 3 acres were sold before the death of the deceased.
80.She further testified that Plot No. Waitaluk/Kapkoi Block 12/Muna/04 was sold to clear the deceased’s hospital bill and related funeral expenses and that the Motor vehicle registration number KAL 504C was sold to finance her medical expenses.
81.It was readily admitted that the deceased was involved in a road traffic accident and stayed in hospital for a long period. He was also diabetic which condition deteriorated with time and was constantly in and out of hospital.
82.At the time of his death, the deceased had accumulated a hospital bill of over Kshs. 2,000,000/=. There is uncontroverted evidence that Grace and her children never contributed towards the settlement of the said expenses and not even the burial expenses. They had also not taken care of the deceased during his illness and had not even checked on how Priscillah faired on since the burial of the deceased.
83.There is also evidence that the children from the first house were well educated and were leading good and successful lives unlike the children from the second house who were largely uneducated. PW1 confirmed that many of his siblings from the first house owned properties and lived independently.
84.On her part, Priscillah had to contend with taking care of the deceased during his sunset days despite her failing health. To that end, some properties were sold during the lifetime of the deceased and some were disposed of after the death of the deceased.
85.By considering the foregoing, this Court finds that the disposal of some of the properties (namely the Moi’s Bridge commercial Plot, Plot No. Waitaluk/Kapkoi Block 12/Chamgei/160 and Plot No. Waitaluk/Kapkoi Block 12/Muna/04) to take care of the deceased during his lifetime and for clearing his medical and funeral expenses on his demise, to be justified. There was no way Priscillah would have single-handedly raised all the funds. Further, a funds drive organized by Priscillah managed to raise such a pitiable amount. Again, Grace and her children never even attended the funds drive.
86.There was also the issue of the disposal of the motor vehicle by Priscillah after the demise of the deceased to enable meet her medical needs. Priscillah testified before court while seated on a wheel chair. She stated that she had been confined to that state due to various ailments and for such a long time. She also stated that there were even times when she used to be admitted in hospital together with the deceased. She also stated that she had been evicted from her rental premises in Limuru by the first house and that the first house had been collecting rent from all the developments in Limuru which were acquired out of her effort in the charcoal business.
87.This court finds favour in treating the vehicle as having been properly disposed of given the state of Priscillah’s age and health. The court will, however, deal with this issue further in this judgment.
88.Having deduced as much, this Court settles that the net estate to be devolved in this matter is comprised of the following properties: -
- Ndeiya/Nderu/T796 measuring 100’ x 100;
- Shares in Barclays Bank and Safaricom;
- Nzoia/Moi’s Bridge Block 1/1099 measuring 17 acres;
- Waitaluk/Kapkoi Block 12/Chamgei/01 measuring 12 acres;
- Limuru/Biribirion/T796 measuring 50’ x 100’;
- Limuru/Biribirion/24 measuring (20’ x 80’;
- Limuru/Biribirion/30 measuring 20’ x 80’;
- 2½ acres of Plot No. 125 Liyavo Scheme No. 527;
89.As stated above, Priscillah initially proposed that the above properties be shared in a certain manner in her mode of distribution filed in court. However, in her written submissions she took another perspective on the distribution and vouched that the distribution be in line with section 42(a) of the Succession Act.
90.With that development, this court will now consider whether section 42(a) of the Succession Act is applicable in this matter.
91.Section 42 of the Succession Act states as follows: -42.Previous benefits to be brought into account:Where-(a)an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or(b)property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.
92.It was Priscillah’s submission that the deceased settled the two houses separately and that the distribution ought to be on the basis of such settlement. To Priscillah, the first house was settled in Ndeiya while the second house in Kitale.
93.It is apparent that Priscillah did not intend to rely on section 42(a) of the Succession Act on how the estate ought to devolve. This Court takes the said view because the mode of distribution dated March 20, 2022 by Priscillah was not based on the said section 42(a) of the Succession Act. The said proposal instead shared the properties in Ndeiya, Limuru and Kitale among the two houses.
94.The matter was heard based on the parties’ proposals on record. PW1 and DW1 testified and were examined on the basis of the proposals then filed in Court.
95.The issue of section 42(a) of the Succession Act only arose in the written submissions filed by Priscillah.
96.Whereas the said legal provision can be referred to by parties at any time, the nature of section 42 of the Succession Act calls for evidence to be adduced as a basis for relying on the said provision. In this case, if Priscillah wanted to rely on that provision, she ought to have stated as much in her proposed mode of distribution so as to enable the other party consider such a position. Priscillah did not do so.
97.What Priscillah did at the submissions stage amounts to introduction of new issues which were not part of those which were raised by the parties and evidence tendered at trial.
98.Courts, as well as Legal Scholars, have severally upheld the position that parties are firmly bound by their pleadings. Just to mention a few; the Court of Appeal in Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
99.The Supreme Court of Kenya in its ruling on inter alia scrutiny of votes in an election dispute in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -(52)Further, the Court went on and observed that: -…. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…..
100.This discussion was taken up further in Kitale High Court Election Petition No. 1 of 2017 Robinson Simiyu Mwanga & Another vs. IEBC & 2 Others (2017) eKLR in Ruling No. 4 on scrutiny of votes. This is what the Court partly stated: -77.But what if the issues although not pleaded came up during the cross-examination of the witnesses and are therefore part of the record? The answer is found in the above decisions of the Supreme Court and the Court of Appeal. Such evidence goes to no issue. That seems to be the position taken by the Scholar Hon. Justice (Prof.) Otieno-Odek in his article aforesaid where he stated that ‘A party cannot be allowed to introduce, through cross-examination contests which were previously not specifically raised in the pleadings…...
101.Therefore, the prevailing position in an adversarial system of dispute resolution is that the issues which a Court is to determine in a matter must flow from the pleadings. Without such a basis, no new matter can be dealt with even if it arose during the hearing.
102.Turning back to the case at hand, the new mode of distribution based on Section 42(a) of the Succession Act made by Priscillah in her submissions cannot, therefore, be considered in determining how the estate ought to devolve for the reason that such new mode was not the initial proposal in her pleadings. It is also worth-noting that Priscillah did not amend her initial proposed mode of distribution.
103.As this Court has now found that the estate cannot devolve on the basis of Section 42(a) of the Succession Act, then the applicable and guiding legal provision is Section 40 of the Succession Act.
104.Section 40 of the Succession Act provides as follows: -40.Where intestate was polygamous(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.
105.By applying the above provision in this case, it comes to the fore that there are 8 children from the 1st house and 7 children from the 2nd house. Even though it was stated that James Kamau Muiruri died, his estate survives and that is why the property in Umoja Inner core in Nairobi still remains in his name. There are, therefore, 15 children of the deceased.
106.Both widows survived the deceased. Pursuant to Section 40 of the Succession Act the widows ought to be added as independent units to the estate. That brings the total number of beneficiaries to 17.
107.Before this Court applies the provisions of Section 40 of the Succession Act, it remains alive to the fact that the Court is under a duty to defend, uphold and respect the Constitution. That is the calling in Article 3 thereof. In doing so, the Court is bound in Article 10 of the Constitution by the national values and principles of governance whenever it applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions.
108.Among the national values and principles of governance in Article 10 of the Constitution include human dignity, equity, social justice, inclusiveness, equality, human rights and non-discrimination. All these are now raised to the cadre of constitutional principles.
109.Chapter 4 of the Constitution provides for the Bill of Rights. Articles 53 and 57 of the Constitution provides for Children and older members of society respectively.
110.Parents and/or those having parental responsibilities over children are under an unwavering constitutional duty to ensure that the child’s best interests are of paramount importance in every matter concerning the child. They are to ensure that children have names, nationalities, are educated, well fed, sheltered, access health care, are protected from abuse, neglect, harmful cultural practices, from all forms of violence, inhuman treatment, punishment and hazardous or exploitative labour.
111.Children are also not to be detained except within the confines of the Constitution and the law.
112.With such carefully-guarded environment, children are, therefore, enabled to pursue their life goals.
113.As the children grow, their parents or those with their parental responsibilities also get older and may eventually attain the age of sixty years. With such an age, a person is recognized by Article 260 of the Constitution as an older member of society.
114.The rights of the older members of society are provided for in Article 57 of the Constitution as under: -57.Older members of society:The State shall take measures to ensure the rights of older persons—(a)to fully participate in the affairs of society;(b)to pursue their personal development;(c)to live in dignity and respect and be free from abuse; and(d)to receive reasonable care and assistance from their family and the State.
115.Of paramount importance is the duty bestowed upon the families of older members of society to ensure that such persons receive reasonable care and assistance from their families.
116.It is, therefore, the finding of this Court that the Constitution bestows upon each member of a family of an older member of society the duty to ensure that such older persons receive reasonable care and assistance from their families. When members of a family of a person who is at least 60 years old and who are capable of providing care and assistance to such a person fail, refuse, ignore or neglect to discharge that duty, without any reasonable justification, then such persons stand in open violation of the Constitution.
117.This Court must, however, clarify that the above duty on the family members is further to other duties the Constitution places on the State in respect to the older members of society. As is the position in Kenya, the State continues to endeavour in putting in place some initiatives towards fulfilment of its duty on the older members. Such include the stipends payable to those over 70 years of age.
118.In applying the foregoing to the case at hand, there is evidence that the children of Grace are well educated and lead good lives. They now own their properties. It cannot be gainsaid that it was the deceased who ensured that he stood to his constitutional duty under Article 53 and ensured that the children are whom they are today given that the evidence of Priscillah to that end was not controverted. There is no evidence that the deceased abandoned the children from the first house or in any way failed to uphold Article 53 of the Constitution.
119.There is also uncontroverted evidence that Grace and her children neglected the deceased especially during his sunset times when the deceased needed them most. That was the time when the deceased was battling ailments and injuries from a traffic accident and used to be in and out of hospital. Of much pain and concern to this Court is that even when the deceased died and left behind huge hospital bills, still the children of Grace bothered not to attend to them. That happened even on the footing that the first house was in possession of all the properties outside Kitale some of which are fully developed and generated income. It is further on record that Priscillah was even evicted from one of the properties by one of the children from the first house.
120.It was all left upon the ailing Priscillah to see how to pay the bills and what to do thereafter. That explains why Priscillah had to sell some of the properties to offset such bills and take care of some funeral expenses.
121.It is also on record that the children of Priscillah did not get good education. Resultantly, they are all dependent on Priscillah and have clung unto some of the properties left behind by the deceased. Even Priscillah herself relies wholly on the properties in Kitale.
122.Priscillah testified before Court. She was on a wheel chair and confirmed that she had been in that state for a long time due to diabetes and old age. According to a copy of her identity card presented to Court during the petitioning of the grant, Priscillah was born in 1943. She is now 80 years old. As the deceased died on 20th August, 2015 at the age of 77 years, then Priscillah was 67 years old by then. She was already an older member of society since the instant Constitution was long promulgated in 2010.
123.The members of the family of the deceased, therefore, remained under a duty to ensure that the deceased, Priscillah and Grace, being of at least 60 years of age as at 2010, were well taken care of in their old age. However, it seems that it is only Grace who enjoys such a status since the deceased and Priscillah were abandoned. This position is further embellished by the fact that none of the children of Grace have ever interacted with or sought to find out how Priscillah is fairing on since the burial of the deceased.
124.Given the above state of affairs, this Court finds that the members of the family of the deceased, especially the children from the first house, have failed to demonstrate why they have not been reasonably taking care and assisting Priscillah who is an older member of their family. To that end, this Court finds and hold that Priscillah was justified in disposing the motor vehicle to take care of her medical needs.
125.This Court would have gone further to address a pertinent constitutional issue on whether the children and spouses of a deceased ought to be regarded as equals in the devolution of estates. However, the Court hereby restrains itself since the issue was not formally raised in this matter. It is the Court’s hope that the constitutionality of Section 40 of the Succession Act in that perspective will be tested at one time.
126.On the basis of the foregoing discussion, with the restraint at hand and in line with Section 7 of the Sixth Schedule to the Constitution which states that ‘all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution’, this Court, therefore, further finds and hold that Section 40 of the Succession Act should apply on a case-by-case basis and subject to considerations including whether the members of the family acted with Articles 53 and 57 of the Constitution, whether there are members of the family who are still minors, previous provisions by the deceased among other considerations.
127.With the above guidance, the focus now turns to the rest of the properties. Despite the tribulations which Priscillah has been going through, she has nevertheless offered part of the properties which she acquired with the deceased to the first house. This Court finds Priscillah a good-hearted and fair-minded person.
128.By keeping hope alive and with a view to allow the family of the deceased to remain as part of the natural and fundamental unit of our society and the necessary basis of social order and coupled with the provisions of Sections 40 (as discussed) and 47 of the Succession Act, this Court shall endeavour a fair distribution of the estate.
129.In coming up with the distribution, the Court will consider the fact that each house ought to retain on the matrimonial property it has all along been occupying. Further, since Priscillah had put up the rental premises on Limuru/Biribirion/24 and had been collecting rent therefrom until when he was evicted after the demise of the deceased, such property ought to revert to her. Since the other properties in Limuru have been in occupation by the first house and also generate income, then it will only be fair that the first house so continues in occupation.
130.As Priscillah has taken part of the property in Limuru known as Limuru/Biribirion/24, then Grace should also have a portion of Nzoia/Moi’s Bridge Block 1/1099. Given that Benard Kamau Muiruri has been in occupation of the 2½ acres of Plot No. 125 Liyavo Scheme No. 527, there is no need of disturbing that status quo.
131.The shares in Barclays Bank and Safaricom ought to be equally shared between the widows.