1.The Petitioner filed an application for confirmation of Grant dated 29th October 2020 seeking the confirmation of Grant made on 1/7/2020 proposing to distribute the estate of the deceased among his heirs listed in paragraph 4 of the supporting affidavit, as shown in paragraph 6, as follows:
2.One of the beneficiaries, David Kiumbe Marete filed an Affidavit of protest sworn on 24/11/2021 alleging that their mother and two sisters had been omitted from the distribution and proposing a different mode of distribution as set out paragraph 8 of his affidavit, as follows:
3.In response to the Protest, the petitioner Charles Marete filed an affidavit in response to protest sworn on 10/3/2022 contesting that the two persons named as sisters by the protesters were in fact, respectively, niece and sister to the deceased and not beneficiaries of the deceased, and that their mother’s share had been equally divided among all the children each getting ¼ acre, as follows:
4.The Protestor filed a further affidavit of Protest sworn on 30/5/2022 and made proposals for distribution of the estate as follows:
5.The following beneficiaries attended court on 27/9/2021 and confirmed their support to the confirmation of Grant for distribution of the estate as proposed by the Petitioner:1.Phineas Kithinji2.Susan Kagwiria Marete3.Rebeccah Mwarania Marete4.Lydia Marete5.John Kinoti Marete and6.Charles Bundi Marete.
6.The Court then heard the Protest and Witness Statements were exchanged and oral testimony on cross-examination of the witness taken before the court.
Summary of evidence
8.The Objector testified principally objecting that the petition which was filed in secrecy had omitted to include and provide for two persons who he described as sisters, one who was living and the other deceased but had left children, and the proposed distribution which he based on the deceased’s written will sought to make provision for them. In examination in chief, the objector relied on the affidavit of Protest of 24/11/2021 and further Affidavit of 31/5/2022, set out above, and produced in exhibit a copy of the Last Will of the Deceased dated 13/8/2003 and Eulogy of Salome Nkonge Robert. On cross-examination the Objector (OW1) said:
9.On re-examination, the Objector (OW1) called for distribution in accordance with his proposal as follows:
10.The Petitioner testified as PW1 and said that the distribution of the estate of the deceased had been effected by the deceased’s own Written Will, and although the persons claimed to be daughters of the deceased by the Objector had been brought in by the deceased to live with them, no provision had been made for them in the will:
11.On cross-examination PW1 said-
12.PW1 was re-examined and he emphasized the contents of the Will with regards to shop on parcel no. 3378 -
13.PW2 was a sister to the objector and the petitioner who, while acknowledging the two persons presented as sisters by the objector as cousins who had lived with them under the care and provision of the deceased, supported the distribution mode proposed by the petitioner in strict compliance with the written will of the deceased. On cross-examination, she said:
14.She was re-examined to reiterate compliance with the deceased’s Will as follows:
15.Counsel for the parties, M/S Kaumbi & Co Advocates for the Petitioner/Administrator and M/S Otieno C. Advocates for the Protestor, filed respective submissions dated 27/4/2023 and 9/5/2023, and judgment was reserved.
16.The Protestor objected the non-inclusion of his sisters and treated the issue as one of revocation of grant urging in his Counsel’s Written Submissions dated 9/5/2023 to exercise inherent powers as follows:
17.The Petitioner maintained that the persons named as ‘sisters’ Joyce Kathambi and Sarah Kananu were not beneficiaries of the estate of the deceased and the property gifted to the mother by the will could be given effect as she had passed on and hence the distribution to all other beneficiaries in equal shares, as urged in Counsel’s Written Submission dated 27/4/2023 as follows:
18.Upon considering the application for confirmation of Grant, the protest and the oral testimony adduced in support of the Protest and the application, the court considers that three issue arise for determination:The Protestor sought to make premium of allegation that he was not notified of the petition. This matter being at the stage of final distribution rather than appointment of an administrator, such objection is misplaced. In any event, the Petition was field by the deceased’s widow for letters of administration with written will annexed and all the beneficiaries including the protestor are shown as surviving the deceased. The present petitioner/Administrator was appointed by the Court on 1/7/2020 upon an application for reinstatement following revocation of the grant made to the deceased widow for want of prosecution on 15/7/2015. No issue arises as to the manner of presentation or obtaining of the Grant made to the widow and the present administrator herein.Alleged Will
19.The formal validity of a written will is set out in section 11 of the Law of Succession Act, as follows:
20.The Court has seen the copy of Will dated 13/8/2003 filed in this petition and it is formally drawn signed and attested and it is accepted as a valid will of the Deceased. The Petition presented by the Deceased’s widow as a petition for probate of Written Will dated 18/7/2006. Following her death and subsequent revocation of the Grant, the present petition was appointed administrator. Indeed, both the Petitioner and the Protestor seek to given effect to the will of the Deceased.
21.The authors of the Eulogy are not disclosed. Eulogy is not evidence of the matters set out therein, and any rate it may only be evidence against the persons who prepared it who may be barred from departing from what they have set out in the written document. On any other matters set out therein suitable evidence/testimony to prove the facts should be independently given.
22.The court does not accept the contention that the person named as Joyce Kathambi and Kananu are daughters of Salome Marete, the deceased subject of the eulogy and widow of the deceased herein. The evidence of the eulogy may only indicate that the said persons were considered, at least by the family members, relatives or friends who wrote the eulogy, as the children of the person whose life-story is set out in the eulogy. It was not clear as to who wrote the eulogy, and it was pointed out that the PW2’s name was misstated as Frida Mwarania rather than Rebeca Mwarania, and it may be evidence that the authors of the eulogy did not the close family members of the deceased’s family well.
23.There was clear evidence, however, from across the witnesses that Kathambi and Kananu although being not biological children of the deceased, they had been taken by the deceased into his family since their childhood and childhood of his own younger children the Objector herein and the Petitioner PW1 and their eldest sibling Rebecca Mwarania, PW2, Indeed, Rebecaa PW2 conceded in cross-examination that -
24.PW1 himself said as regards Joyce Kathambi –
25.On the evidence, the Court must accept that the said Joyce Kathambi and Sarah Kananu were, if not children, at least dependants of the deceased, within the meaning of section 29 of the Law of Succession Act.Provision for the Dependants Joyce Kathambi and Sarah Kananu
26.The relevant provisions sections of the Law of Succession Act are section 26-30, which provide as follows:
27.The two persons Joyce Kathambi, deceased and leaving three children, and Sarah Kananu are dependants of the estate of the deceased. Their application could be made under section 26 of the Law of Succession Act in person or by another person on their behalf. The Court considers and deems that the Protest of the Objector in this regard is an application for provision within the meaning of section 26 of the Act, which has been brought consistently within the limitation of time set out in section 30 of the Act.
Compensation by John Kinoti to Solomon Kithinji for assault
28.It is common ground that the beneficiary John Kinoti had agreed via an agreement annexed to the Protestor’s Affidavit of Protest agreed to give an acre of land from his share of inheritance as compensation for assault on his brother Solomon Mwenda Marete, and the two distribution proposals agree on the acre being incised from his 5 acre share of Ruiri/Rwarera/1388 so that he remains with 4 acres, while Solomon Marete gets 6 acres thereof.
Deceased heir’s share
29.The Protestor suggested that the 2.34 acres gifted by Will to the widow should go the families of Joyce Kathambi and Sarah Kinanu. PW1 and PW2 do not agree and their main contention is that the deceased had not provided for the children in the Will, and therefore the mother’s share should be divided among all her children. The petitioner’s side also points that the children of Joyce who is deceased had not claimed any share in the estate and they were not party to the proceedings.
30.There is, therefore, no application for provision for dependency as contemplated under section 26 of the Law of Succession Act, and in the circumstances, should the court make any orders thereon? This Court considers that the wide discretion of the court under sections 26 and 27 of the Law of Succession Act is aimed at doing justice in the case having regard to the matters set out in section 28 of the Act and it may be exercised in a proper case on application by or for the dependant who qualifies under section 29 of the Act.
31.In this case, the court is being moved by the Protestor on behalf of the dependants and it also considers in its discretion that the order for provision should be made as it is common ground that the two dependants were being provided for by the deceased during his life, no evidence of any gift inter vivos to them and they are not provided for in the will and there is nothing to show that the they are now independent and not in need of such provision, and size of the estate and the number of heirs allows for such provision to be made without impoverishing the heirs named under the Will.
32.The valid Will must be given effect to the extent possible. In view of the death of the widow of the deceased her bequeath cannot take effect. As the persons named as having been provided for by the deceased qualify as his dependants, provision shall be made for the two dependants Joyce Kathambi (to be taken by her children who have survived her) and Sarah Kananu in terms of section 26 of the Law of Succession from the 2.34 acre share of LR Nyaki/Kithoka/108 gifted by the Will to the deceased’s widow of the deceased so as not to interfere with the freedom of testation to the living beneficiaries.
33.Accordingly, for the reasons set out above, the Court makes the following orders1.The distribution of the Estate of the Deceased shall follow, in respect of all surviving heirs, the valid Will of the deceased dated 13/8/2003, save that by subsequent agreement John Kinoti’s share in Ruiri/Rwarera/1388 is reduced one acre and given to his brother Solomon Mwenda Marete who should, therefore, get 5 acre and 6 acre shares thereof, respectively.2.The Court makes an order for reasonable provision for dependants of eh deceased who have not been provided for under the Will and, for that purpose, the share of 2.34 Acres in the parcel of land LR Nyaki/Kithoka/108 bequeathed under the Will to the Deceased’s widow who is now since deceased shall go to the two dependants of deceased, namely two dependants Joyce Kathambi (to be taken by her children who have survived her) and Sarah Kananu, in equal shares of approximately 1.15 acres each.3.There shall be no order as to costs.Order accordingly.