REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
SUCC CAUSE NO. 14 OF 2019
(Formerly Machakos High Court P & A No. 206 of 1997)
IN THE MATTER OF THE ESTATE OF JOHN MBEVI MULINGE (DECEASED)
ESTHER MBENGE MBEVI………….……….………….1 ST ADMINISTRATOR
ZAKAYO NYAMAI MBEVI -DECEASED (Substituted with)
DAVID SILA MULINGE….………………….………….2 ND ADMINISTRATOR
JAMES MUEMA MBEVI……………….3 RD ADMINISTRATOR/PROTESTOR
SIMON MUSYOKA MBEVI…………………….……….4 TH ADMINISTRATOR
TITO MUSYOKA KITULO………………….…………….INTERESTED PARTY
JUDGMENT
Introduction
1. This matter was initially filed in Machakos High Court and transferred to this court on 08/10/2019. It is not in dispute that the deceased had two wives, Voethe Kalunde Mbevi (deceased) and Esther Mbenge Mbevi.
2. The 1 st Administrator Esther Mbenge Mbevi is the 2 nd wife and the 4 th Administrator Simon Musyoka Mbevi is her son.
3. David Sila Mulinge and James Muema Mbevi the 2 nd and 3 rd Administrators are grandchild and son of the 1 st wife Voethe Kalunde Mbevi.
4. Many preliminary issues including substitution of deceased parties have been dealt with culminating in the summons of confirmation of grant dated 04/07/2023, filed by the 2 nd Administrator, David Sila Mulinge.
The Affidavit sworn on 04/07/2023 in support of Summons for Confirmation of Grant
5. David Sila Mulinge deponed that he swore the affidavit on his own behalf and on behalf of his siblings whom he represents from the house of Voethe Kalunde Mbevi (deceased).
6. That, by consent of the parties, a grant of letters of administration of the estate was made jointly to Zakayo Nyamai Mbevi, Esther Mbenge Mbevi, James Muema Mbevi and Simon Musyoka Mbevi by the Honourable Judge at Makueni on 11/05/2021. That, subsequently, Summons for Confirmation of Grant were lodged by the 2 nd Administrator, Zakayo Nyamai Mbevi.
7. He deponed that his two siblings who were beneficiaries to the estate passed on before the grant could be confirmed; Grace Muvoye Mati, in April 2022, Zakayo Nyamai Mbevi, who was also the 2 nd Administrator in May 2023. That, it became necessary and just to amend the earlier proposed distribution schedule to include the children of the late Grace and the wife of the late Zakayo
8. He deponed that his affidavit consolidated all the affidavits that had been sworn by the late Zakayo Mbevi in relation to and in support of the Summons for Confirmation of Grant and distribution of property for the purposes of the hearing of the protests.
9. He deponed that all dependants have been identified and there is no likelihood of any other person raising an objection to this application.
10. He deponed that the deceased was survived by the following;
a) Voethe Kalunde Mbevi………………………….……...wife (deceased)
b) Esther Mbenge Mbevi…………………………….…….………….wife
c) Paul Musau Mbevi……………………….………….….son (deceased)
d) James Muema Mbevi…………………………………….…………son
e) Zakayo Nyamai Mbevi……………...…….……….……son (deceased)
f) William Ngenda Mbevi…………………………….…...…………….son
g) David Sila Mbevi…………………………………………….………….son
h) Jonah Kyalo Mbevi………………………………...………...………….son
i) Justus Makau Mbevi……………………...………….…………...……. son
j) Francis Mwanza Mbevi……………………………………….......……son
k) Simon Musyoka Mbevi……………………..……………….………….son
l) Julius Ndivo Mbevi………………………….………….……………….son
m) Lilian Wayua Mbevi…………………………………...…………daughter
n) Grace Muvoye Mati………………………….……daughter (deceased)
o) Dorothy Mbithi……………………….……...………………….daughter
p) Beatrice Ndolo…………………………….…………………….daughter
q) Serah Wambua…………………….…………………………….daughter
11. He deponed that no application for provision for dependants was pending and that he had identified the shares of all persons beneficially entitled to the estate of John Mbevi Mulinge, from the house of Voethe Kalunde Mbevi (deceased), and proposed distribution as follows:
Asset
Beneficiary
Share
Shop No.12A
Ukia Market
David S. M. Mulinge
Absolutely
Parcel No. Ukia/Utaati/637
2 Acres
1. David S. M. Mulinge
2. Jonah Kyalo Mbevi
3. Beatrice Kinyanzui Ndolo
0.75 Acres
0.75 Acres
0.50 Acres
Parcel No. Ukia/Kilala/112
2.5 Acres
1. Israel Manthi Mbevi & Muini Mbevi (jointly) – to hold in trust for the entire family of Paul Musau Mbevi.
2. James Muema Mbevi
3. William Ngenda Mbevi
4. Beatrice Kinyanzui Ndolo
0.75 Acres
0.75 Acres
0.75 Acres
0.25 Acres
Parcel No. Ukia/Utaati/624
3 Acres
1. Esther Mueni Mbevi - to hold in trust for the family of Zakayo Nyamai Mbevi.
2. Serah Mutheu Mati, Naomi Kalunde Mati, Phoeby Mwende Mati, Job Mwendwa Mati and Joan Kavinya Mati.
3. Serah Mulewa Wambua
4. Dorothy N. Mbithi
0.75 Acres
0.75 Acres in equal shares
0.75 Acres
0.75 Acres
Parcel No. Machakos/Konza North/Block I/321
Luis Nzisa Kitulu (Purchaser)
Absolutely
Shop No.6, Ukia Market
William Ngenda Mbevi
Absolutely
12. He deponed that the Affidavits of Protest filed by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Simon Musyoka Mbevi together with their proposed schedules of distribution had been considered and the proposed schedule of distribution that was originally filed with the Summons for Confirmation of Grant had been amended as per paragraph 7 above. That, the proposed distribution in this affidavit relates only to the properties identified in the petition that are associated with the household of Voethe Kalunde Mbevi (deceased).
13. That, the rest of the properties would be dealt with by the representative of the household of Esther Mbenge Mbevi.
14. He attached the search certificates for the deceased’s properties known as Ukia/Kilala/112, Ukia/Utaati/637 and Ukia/Utaati/624 as exhibits DSM 1A, 1B and 1C respectively.
15. He deponed that LR No. Machakos/Konza North/Block 1/321 was sold by the deceased’s wives, Voethe Kalunde and Esther Mbenge in 1997 to one Luis Nzisa Kitulu, and is yet to be transferred to the Purchaser. A copy of the Sale Agreement is annexed as DSM 2 .
16. It is also deponed that in the pendency of these proceedings, Plot Number 6, Ukia Market, which was originally in the name of the deceased, John Mbevi, has secretly and fraudulently been transferred to his brother, William Ngenda Mbevi. However, the family now wishes to let the property remain in William’s name as part of his share of the estate.
17. That having read the Affidavits of Protest sworn by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Simon Musyoka Mbevi, his response is as follows:
a) The property referred to as Plot No. 21A, Ukia Market, at paragraph 4 (ii) of the Affidavit of Simon Musyoka Mbevi, does not exist, it is a mistake and to read Plot No. 12B, Ukia Market, and may be distributed to one of the sons of the 1 st Administrator as proposed.
b) The property listed at paragraph 4(iv) of the Affidavit of Simon Musyoka Mbevi, being Konza South Block 7 (Kima) 314 , and Konza Plot No.1452 at paragraph 3(l)and 3(j)of the joint Affidavit of William Mbevi and James Mbevi, are one and the same property. The number 314 is the ballot number while 1452 is the title number . belongs to and is registered in the joint names of Esther M. Mbevi (1 st Administrator) and Kalunde Mbevi (now deceased) , the wives of the deceased. A copy of the search certificate is annexed as exhibit DSM 3 . It is not available for distribution.
c) The property listed at paragraph 3(h) of the joint Affidavit of William Mbevi and James Mbevi, Konza South Block 7 (Kima) 1897 , is also referred to as Commercial Plot No. 932 at paragraph 3(g) of the joint Affidavit of William Mbevi and James Mbevi. The number 932 is the ballot number while 1897 is the title number. It is registered in the name of Cha-Uni Investment Limited , a purchaser. It belonged to the wives of the deceased. A copy of the search certificate is annexed as exhibit DSM 4 . It is not available for distribution
d) The property known as Ukia/Utaati/Plot 12A was sold to him, David S. M. Mulinge, by the family, way back in the year 2013 at a time when the deceased’s wife, Voethe Kalunde Mbevi, was battling with ill health and funds were required in order to take care of her treatment and other needs. The family therefore held a meeting and agreed to sell the said property to one of their own. A copy of the minutes of the meeting and the sale agreement are exhibited as DSM 5 and it is only fair and proper that it should be transferred to him.
e) That the property known as Kwa Katheka Plot No.74 listed at paragraph 3(f) of the joint Affidavit of William Mbevi and James Mbevi, was sold by the deceased several years ago. It is not available for distribution.
f) The properties known as Konza Plot No. 896, Konza Plot No. 614 and Konza Commercial Plot (20ft by 100ft), listed at paragraph 3(i), 3(k) and 3(m), respectively, of the joint Affidavit of William Mbevi and James Mbevi, are non-existent as no record of these properties has been found anywhere.
g) That, he David S. M. Mulinge, has settled on a portion of Ukia/Utaati/637 where he has built his home which stands side by side with their late mother’s house and he has lived with his family for many years. That, the protesters proposal that the property be distributed to the other beneficiaries, to his exclusion, and that he be evicted and his home demolished is wrong, unfair and untenable as he has no other home anywhere. He has annexed a bundle of photographs and sketch showing how his home and that of their late mother are positioned on the ground as exhibit DSM 6.
h) That the allotment letter for the property known as Ukia/Utaati/Plot 12 has been traced and shows that the said property belonged to the deceased. A copy of the Letter of Allotment dated 11/07/1980 is annexed as exhibit DSM 7. That, there are 2 shops constructed on the Plot 12A and 12B and he, David S. M. Mulinge occupies the one for his late mother while the house of Esther Mbenge occupies the other shop.
i) That, the affidavits of protest inter alia contain proposals of distribution that are grossly unfair having included and apportioned nonexistent properties some of which are either sold or registered in other people’s names. That these proposals ought to be rejected and the schedule of distribution proposed under paragraph 7 above be upheld.
The Protests
Joint Affidavit by James Muema Mbevi & William Ngenda Mbevi sworn on 30/07/2021 and filed on 07/09/2021
18. They deponed that the deceased had the following assets before his demise;
a) Ukia/Kilala Parcel No. 112 – 1.0 Ha
b) Ukia/Utatii Parcel No. 624 – 1.2 Ha
c) Ukia/Utatii Parcel No. 637 – 0.8 Ha
d) Ukia/Utatii Parcel No. 12A
e) Konza North Block 1/321 – 10 Acres
f) Kwa Katheka Plot No. 74
g) Commercial plot No. 932
h) Konza South/Block 7 (KIMA) 1897
i) Konza Plot No. 896
j) Konza/South Block 7 (KIMA) 314
k) Konza Plot 614
l) Konza Plot No. 1452
m) Konza Commercial Plot Measuring 20FT X 100FT
19. They exhibited the grant of letters of administration issued to the late Voethe Kalunde Mbevi and Esther Mbenge Mbevi as JMM 1 .
20. According to them, Konza North/Block 1/321 was illegally sold to Luis Nzisa Kitulu because the administrators of an estate do not have powers to dispose off any property belonging to the deceased during the pendency of succession proceedings. That, the sale agreement annexed to the Summons for Confirmation of grant amounts to intermeddling and this court should find that the sale is null and void.
21. They deponed that a purchaser is not a beneficiary of an estate of a deceased person and should pursue his claim in civil proceedings.
22. That, the 2 nd Administrator has left out most of the properties located in Konza and it is prudent for the court to administer all the properties belonging to the deceased. The properties are;
a) Konza North Block 1/321 – 10 Acres
b) Kwa Katheke Plot No. 74
c) Konza South/Block 7 (KIMA) 1897
d) Konza plot No. 932
e) Konza Plot No. 1452
f) Konza Plot No. 896 measuring 30FT X 80FT
g) Konza/South Block 7 (KIMA) 314
h) Konza Plot 614
i) Konza Commercial Plot Measuring 20FT X 100FT
23. The search certificates for the above properties were exhibited as JMM 2 and proposed that the distribution be done as follows;
Asset
Beneficiary
Share
Ukia/Kilala 112
Michael Mutua Mbevi
Israel Manthi Mbevi & Muini Mbevi (Jointly) – To hold in trust for the entire family of the late Paul Musau Mbevi
Absolutely
Ukia/Utaati/624
James Muema Mbevi
Absolutely
Kwa Katheke Plot No. 74
Zakayo Nyamai Mbevi
Absolutely
Konza South/Block 7 (KIMA) 1897
Davis Sila Mbevi
Absolutely
Konza Plot No. 896
Grace Muvoye Mati
Absolutely
Konza Commercial Plot measuring 20FT X 100FT
Dorothy Mbithi
Absolutely
Ukia/Utatii/12A
Beatrice Ndolo
Absolutely
Ukia/Utatii/637
Johan Kyalo Mbevi
William Ngenda Mbevi
Two portions and a common land to be held by the administrators in trust for the other beneficiaries
Konza Plot 932
Serah Mulewa Wambua
Absolutely
24. It is their prayer that the title of land parcels numbers; Konza North Block 1/321, Konza South/Block 7 (KIMA) 314, Konza Plot 614, Konza Plot No. 1452 and Konza Commercial Plot Measuring 20FT X 100FT be cancelled and be reverted to the name of the deceased. Further that these parcels be sold and the proceeds shared equally amongst James Muema Mbevi, William Ngenda Mbevi, Jonah Kyalo Mbevi and the beneficiaries of the late Paul Musau Mbevi.
25. They deponed that the 2 nd Administrator has not annexed any documentary evidence to show that Plot No. 6 Ukia Market belonged to the deceased.
26. That, there is pending before this court HCCC No. 4 of 2020 where land parcel Ukia/Utaati/624 is in dispute.
27. They deponed that the consent to confirmation was never executed by all the beneficiaries hence it should be disregarded.
Affidavit by Michael Mutua Mbevi sworn on 30/07/2021 and filed on 07/09/2021
28. He deponed that as a son to the late Paul Musau Mbevi, who is a beneficiary to the estate of the deceased, he has authority from his siblings to represent the interest of their father in these proceedings.
29. His proposed mode of distribution and the rest of the affidavit are similar to the joint affidavit of James Muema Mbevi & William Ngenda Mbevi.
Affidavit by Simon Musyoka Mbevi sworn on 14/10/2021 and filed on 15/10/2021
30. He deponed that the house of his mother, Esther Mbenge Mbevi, has no interest in the properties listed in the affidavit sworn in support of the Summons. However, he deponed that it is imprudent and unprocedural for the grant to be confirmed in respect of only part of the deceased’s estate.
31. He deponed that the portion of the estate that relates to his mother’s household comprises of the following properties;
a) Ukia/Utaati/630
b) Plot No. 21A Ukia Market
c) Ukia/Utaati/1244
d) Konza South Block 7 (KIMA) 314
e) Commercial Plot No. 932 at Konza
f) Commercial Plot No. 1/321at Konza
32. He deponed that the identification of all persons beneficially entitled to the said estate have been ascertained and determines as follows;
Property Identification
Beneficiary
Share
Ukia/Utaati/630
Justus Makau Mbevi
Francis Mwanzia Mbevi
Julius Ndivo Mbevi
1/3 share each
Plot No. 21 A Ukia Market
Julius Ndivo Mbevi
Absolutely
Ukia/Utaati/1244
Simon Musyoka Mbevi
Absolutely
Konza South Block 7 (Kima)314
Justus Makau Mbevi
Francis Mwanzia Mbevi
Simon Musyoka Mbevi
Julius Ndivo Mbevi
As joint owners
½ of the existing parcel
Commercial Plot No. 932 at Konza
David Sila Mulinge
Whole
Plot No. 1/321 Konza North
Luis Kitulu
Whole
33. He deponed that no application for dependents is pending.
Affidavit by Johan Kyalo Mbevi sworn on 18/07/2023 and filed on the same date
34. He deponed that he is the last-born child of the deceased and the 1 st wife, the late Voethe Kalunde Mbevi. That, he has been minimally involved in the succession process as some of his siblings have kept him out of the loop as to the happenings of this succession matter.
35. He deponed that in 1997 he was already in gainful employment and his mother was of good health until her passing, and the averment by his siblings, that they had to sell part of the estate to pay his school fees and her medical bill, is untrue.
36. He deponed that he initially settled on Ukia/Utaati/624 through the blessings of his late mother and has lived on the property for 27 years developing it by planting oranges, mangoes, constructing a house and laying a permanent foundation for another house. A bundle of pictures is annexed as exhibit JK-1. That, despite this, some of his brothers have decided to disinherit him by kicking him out. They maliciously destroyed his property whereupon he reported to the police and filed a case in this court being HCCC No. 4 of 2020.
37. He deponed that his brothers maliciously destroyed his property rendering him homeless and destitute, his house was locked by William Mbevi. That he has no place to stay whenever he goes home and has to be hosted by one of his brothers or book a hotel in Wote town which is quite unfair and humiliating for him. That he reported to the police and filed a case in this court being HCCC No. 4 of 2020 .
38. He deponed that according to Kamba customary law, as the last born, he was entitled to inherit his mother’s home (Ukia/Utaati/637). That, from the mode of distribution filed in court, his brothers were bent on sharing the home among him, David and Beatrice. A picture of the house annexed as exhibit JK 2.
39. He deponed that some of his siblings were referring to him as Internally Displaced Person (IDP) and he annexed a copy of the statement by one of the beneficiaries is as JK 3.
40. His proposal is that if at all their mothers homestead is to be distributed then it should be divided between two of her sons since their sister can be allocated elsewhere.
41. He deponed that he was diagnosed with type 2 diabetes and hypertension in 1995 and was in and out of the hospital and it was impossible for him to follow up on this issue of succession.
42. That, when he signed documents relating to this succession, he was medically unfit to do so hence they should be disregarded. He has annexed a copy of doctor’s note as JK 4.
43. He deponed that he recently found out that some beneficiaries have intermeddled with the following properties;
a) Konza/North/Block 1/321 which was illegally sold to Luis Nzisa Kitulu.
b) Konza South Block 7 (KIMA) illegally transferred to Chauni Investment wherein David Mulinge is a director.
c) Shop No. 12A in Ukia Market illegally allocated to David S. Mulinge
d) Kwa Katheke Plot No. 74 which was omitted from the distribution list adduced in court.
e) Shop No. 6 in Ukia Market illegally transferred to William Mbevi.
44. He urged the court to issue orders to revert the above properties to the deceased. That if they are to be sold, it should be at the current market price. That, whoever illegally received money from sale of any part of the estate should be ordered to refund the money to the buyers.
45. That he had visited Zakayo Mbevi to talk about these issues but Zakayo died before he could convene a family meeting. That, all his attempts to communicate with the family lawyer proved futile thus necessitating the filing of the protest. He annexed WhatsApp screenshots between him and the Lawyer as JK 5.
46. His proposed mode of distribution is as follows;
Asset
Beneficiary
Share
Ukia/Kilala/112
Israel Manthi & Muini Mbevi(jointly) to hold in trust for the entire family of Paul Musau Mbevi
James Muema Mbevi
William Ngenda Mbevi
Beatrice Kinyanzui Ndolo
0.75 acres
0.75 acres
0.75 acres
0.75 acres
Ukia/Utaati/624
Jonah Kyalo Mbevi
Absolutely
Kwa Katheka Plot No. 74 (2 acres)
Zakayo Nyamai Mbevi
Serah Mulewa Wambua
Dorothy N. Mbithi
To share equally
Konza South/Block 7 (KIMA) 1897
Jonah Kyalo Mbevi
Absolutely
Konza Plot No. 896
Grace Muvoye Mati
Absolutely
Ukia/Utaati 21A
Jonah Kyalo Mbevi
Absolutely
Ukia/Utaati/ 637
Jonah Kyalo Mbevi
David Sila Mbevi
Two portions and a common land to be held by the Administrators in trust for other beneficiaries
Konza Plot No. 932
James Muema Mbevi
Absolutely
Machakos/Konza North/Block 1/321
William Ngenda Mbevi
James Muema Mbevi
Jonah Kyalo Mbevi
Grave Muvoye Mati
To share equally
47. He deponed that the consent for confirmation of grant was never executed by all the beneficiaries hence it should be disregarded.
48. The matter was heard through viva voce evidence.
Protestors’ Case
49. 1 st Protestor was Simon Musyoka Mbevi , the 4 th Administrator and he adopted his affidavit dated 14/10/2021 as his evidence in chief.
50. On cross-examination by Mr. Simiyu for the 3 rd Administrator with regard to registered owner of shop No. 6 at Ukia Market, he said that he heard that the property is registered under William’s name. He stated that he had not seen the title deed and had not done a search. He was not aware as to whether there is an agreement/transfer. He said that the previous owner was his late father and that he had not seen any agreement between his father and William.
51. On cross-examination by Mr. Mbindyo for the Interested Party, he confirmed that he had no objection to Machakos/Konza North/Block 1/321 being transferred to the estate of Luis Nzisa Kitulu.
52. On cross-examination by Mrs. Mutua for the 2 nd Administrator with regard to plot No. 12 Ukia market, he confirmed that there has been plot 12A and 12B for each house and he meant plot No. 12B, for his family and that plot No. 12A should be distributed to the 2 nd Administrator’s family. .
53. 2 nd Protestor was James Mbevi and he adopted his witness statement dated 09/11/2022 as his evidence as captured in his affidavit of protest, He indicated that he wished to put in a new statement to change the manner of distribution and the court directed him to mention the properties he had discovered. He said that the omitted properties are in Konza Ranch. His Advocate said that the properties which were in the name of the deceased at the point of death were transferred by the Konza Ranch and Farming Society to both wives.
54. On cross-examination by Ms. Munyiva for Jonah Kyalo (protestor) with regard to Ukia/Utaati/624, he said that the parcel should be given to him(James) absolutely as it was gifted to him in 1969 and he started tilling it since he was 7 years old. He said that after school, he worked with ministry of lands all his life. He confirmed that the property had not been transferred to him and that he had no photos of himself on the land. He conceded that there was no one in court to confirm that the land was gifted to him.
55. He also conceded that he and William Ngenda Mbevi were the defendants in Makueni HCCC 4 of 2020 where Jonah Kyalo Mbevi was the plaintiff claiming that they entered Ukia/Utaati/624 maliciously destroyed property. He denied the allegations.
56. On cross-examination by Ms. Mwangi for Jonah Kyalo (protestor) with regard to Ukia/Utaati/624, he said that he was gifted ½ the portion on his wedding day and the other ½ as his inheritance. That, the inheritance allocation was made by himself, William Ngenda Mbevi and Mutua Paul Mbevi and that it was not a family decision.
57. On cross-examination by Ms. Kalinga for the 1 st & 4 th Administrators, he confirmed that when he said plot No. 21 Ukia he meant plot No. 12B. He said that his 2 sisters should also have a share in commercial plot 932 at Konza.
58. On cross-examination by Mrs. Mutua for the 2 nd Administrator, he said that the affidavit dated 07/07/2023 was his final proposal. That, he should have Ukia/Utaati/624 absolutely as it was partially a gift and partially inheritance. That, he entered the land when he was 7 years old and was tiling the land, maize, beans, sweet potatoes. He denied that , Jonah Mbevi ever planted oranges, mangoes and avocadoes but it was their mother who planted them. With regard to HCCC 004/2020, he maintained that he did not destroy anything.
59. With regard to the equal distribution proposed by David Sila Mulinge, he said that Ukia/Utaati/637 belonged to his father and it was his parent’s homestead. That, it was William Ngenda Mbevi and David Sila Mulinge who were living there .
60. That there were two buildings, a storied house belonging to David Sila and the other one belonging to their mother but was bequeathed to William Ngenda Mbevi before she died. He was shown photos and he identified the green gate leading to his parents’ house, the front of the other house, the cemetery where their parents are buried.
61. That, William Ngenda partly built the house together with other members of the family i.e., David Sila, William and Jonah. That, they did so by way of contribution. That, the house was for their mother, plus rooms for themselves because they were not married. That, William has another home for his other family which is not finished but where his children live when they visit.
62. He said he could not remember when David Sila built his house but said it could be 5 years ago, less than 10 years ago. that David Sila and William Mbevi had lived on that parcel of land the longest .
63. He denied proposing that David Sila should be evicted. That this was common land for all the 20 children. He could not recall the last time they met there as a family but that, they had been meeting since 2016 when their mother died but have not been keeping records. That, many have been denied access and are only granted after coercion. He said that the home should not be distributed but Jonah could build there if he wished to live with his brother William.
64. With reference to the Konza properties, he said that there was a share certificate showing that they belonged to his father but he did not produce it. His proposal was the 10 shares be sold and proceeds shared.
65. With reference to Konza Plot No. 74 (Kwa Kaveke), he said did not need to have proof of ownership but was aware that it was sold by Zakayo Mbevi though he was not aware whether there is a title.
66. Regarding Konza plot No. 932 he confirmed that he has distributed it as per the letter from Konza. Referred to letter dated 18/10/2022 from Konza Ranching, he confirmed that the property was sold by Voethe Kalunde and Esther Mbenge to Chauni Investment Ltd and that the title deed was in the name of the new buyer. He insisted that the property was still available for distribution despite being in the title of the new owner. He said that he was not aware that plot 932 and 1987 was the same property or that 932 was the ballot number and 1987 the plot number. That, a clarification would be given by Konza people.
67. When asked why he had distributed plot 1452 Konza, he confirmed that the title is in the names of their mothers but insisted that it should still form part of the estate. As to whether plot 1452 is the same as 314, he said that the letter from Konza Ranching is vague and not legible. When asked whether he had evidence to prove ownership of Konza Plot 896, he said that it was in the letter and grant documents hence no need of any other evidence.
68. Referred to Konza plot No.1/321, he confirmed that according to the letter, it was sold to Titus Musyoka Kitulu but insisted that it belonged to his father and should be distributed.
69. With regard to Konza plot No. 614 and Konza plot measuring 20x100, he conceded that according to letter from society, the properties are unknown. He however insisted that the properties exist and belonged to his father and the society had not done a proper search or taken time to survey and locate the same.
70. Asked about his sister’s shares, he stated that he had assigned one in the Konza plots and the other - the Ukia shop. When it was put to him that he had done so knowing very well that the plots were non-existent, he insisted that they exist and if they were sold, then they were sold by his sisters and brothers. He said he did not have evidence other than his words which he insisted were the truth.
71. On further cross-examination, he said that the common land should be distributed to William and Jonah. That he had left out David Sila Mulinge from the distribution despite having a building on the land and that he has proposed distribution of common land of ¼ acre to 22 beneficiaries.
72. On cross-examination by Mr. Mbindyo for the Interested Party, he said that Tito Musyoka Kitulu was not known to him and that he was not aware of the sale of Machakos/ Konza North /Block 1/321 until he saw the documents saying so. That, the sale agreement did not bear the deceased’s name. On being shown the sale agreement, he said that the sellers were his mother and step-mother, the purchaser was Loise Kitulu and the document is dated 07/07/1997. He was not aware that 19 of his siblings consented to the sale.
73. He took the position that even though his mother sold the property his father’s name was not in the sale agreement and the property could only be rightfully sold after succession.
74. He told the court that he was appointed as an Administrator on 11/05/2021 and at the time of his testimony on 26/10/2023, he had been an Administrator for over 2 years. That, one of the functions of an Administrator is to file suits on behalf of the estate. He conceded that he had not sued anyone; that he worked in Ministry of Lands for over 30 years as senior assistant
[...truncated]
IN THE HIGH COURT AT MAKUENI
SUCC CAUSE NO. 14 OF 2019
(Formerly Machakos High Court P & A No. 206 of 1997)
IN THE MATTER OF THE ESTATE OF JOHN MBEVI MULINGE (DECEASED)
ESTHER MBENGE MBEVI………….……….………….1 ST ADMINISTRATOR
ZAKAYO NYAMAI MBEVI -DECEASED (Substituted with)
DAVID SILA MULINGE….………………….………….2 ND ADMINISTRATOR
JAMES MUEMA MBEVI……………….3 RD ADMINISTRATOR/PROTESTOR
SIMON MUSYOKA MBEVI…………………….……….4 TH ADMINISTRATOR
TITO MUSYOKA KITULO………………….…………….INTERESTED PARTY
JUDGMENT
Introduction
1. This matter was initially filed in Machakos High Court and transferred to this court on 08/10/2019. It is not in dispute that the deceased had two wives, Voethe Kalunde Mbevi (deceased) and Esther Mbenge Mbevi.
2. The 1 st Administrator Esther Mbenge Mbevi is the 2 nd wife and the 4 th Administrator Simon Musyoka Mbevi is her son.
3. David Sila Mulinge and James Muema Mbevi the 2 nd and 3 rd Administrators are grandchild and son of the 1 st wife Voethe Kalunde Mbevi.
4. Many preliminary issues including substitution of deceased parties have been dealt with culminating in the summons of confirmation of grant dated 04/07/2023, filed by the 2 nd Administrator, David Sila Mulinge.
The Affidavit sworn on 04/07/2023 in support of Summons for Confirmation of Grant
5. David Sila Mulinge deponed that he swore the affidavit on his own behalf and on behalf of his siblings whom he represents from the house of Voethe Kalunde Mbevi (deceased).
6. That, by consent of the parties, a grant of letters of administration of the estate was made jointly to Zakayo Nyamai Mbevi, Esther Mbenge Mbevi, James Muema Mbevi and Simon Musyoka Mbevi by the Honourable Judge at Makueni on 11/05/2021. That, subsequently, Summons for Confirmation of Grant were lodged by the 2 nd Administrator, Zakayo Nyamai Mbevi.
7. He deponed that his two siblings who were beneficiaries to the estate passed on before the grant could be confirmed; Grace Muvoye Mati, in April 2022, Zakayo Nyamai Mbevi, who was also the 2 nd Administrator in May 2023. That, it became necessary and just to amend the earlier proposed distribution schedule to include the children of the late Grace and the wife of the late Zakayo
8. He deponed that his affidavit consolidated all the affidavits that had been sworn by the late Zakayo Mbevi in relation to and in support of the Summons for Confirmation of Grant and distribution of property for the purposes of the hearing of the protests.
9. He deponed that all dependants have been identified and there is no likelihood of any other person raising an objection to this application.
10. He deponed that the deceased was survived by the following;
a) Voethe Kalunde Mbevi………………………….……...wife (deceased)
b) Esther Mbenge Mbevi…………………………….…….………….wife
c) Paul Musau Mbevi……………………….………….….son (deceased)
d) James Muema Mbevi…………………………………….…………son
e) Zakayo Nyamai Mbevi……………...…….……….……son (deceased)
f) William Ngenda Mbevi…………………………….…...…………….son
g) David Sila Mbevi…………………………………………….………….son
h) Jonah Kyalo Mbevi………………………………...………...………….son
i) Justus Makau Mbevi……………………...………….…………...……. son
j) Francis Mwanza Mbevi……………………………………….......……son
k) Simon Musyoka Mbevi……………………..……………….………….son
l) Julius Ndivo Mbevi………………………….………….……………….son
m) Lilian Wayua Mbevi…………………………………...…………daughter
n) Grace Muvoye Mati………………………….……daughter (deceased)
o) Dorothy Mbithi……………………….……...………………….daughter
p) Beatrice Ndolo…………………………….…………………….daughter
q) Serah Wambua…………………….…………………………….daughter
11. He deponed that no application for provision for dependants was pending and that he had identified the shares of all persons beneficially entitled to the estate of John Mbevi Mulinge, from the house of Voethe Kalunde Mbevi (deceased), and proposed distribution as follows:
Asset
Beneficiary
Share
Shop No.12A
Ukia Market
David S. M. Mulinge
Absolutely
Parcel No. Ukia/Utaati/637
2 Acres
1. David S. M. Mulinge
2. Jonah Kyalo Mbevi
3. Beatrice Kinyanzui Ndolo
0.75 Acres
0.75 Acres
0.50 Acres
Parcel No. Ukia/Kilala/112
2.5 Acres
1. Israel Manthi Mbevi & Muini Mbevi (jointly) – to hold in trust for the entire family of Paul Musau Mbevi.
2. James Muema Mbevi
3. William Ngenda Mbevi
4. Beatrice Kinyanzui Ndolo
0.75 Acres
0.75 Acres
0.75 Acres
0.25 Acres
Parcel No. Ukia/Utaati/624
3 Acres
1. Esther Mueni Mbevi - to hold in trust for the family of Zakayo Nyamai Mbevi.
2. Serah Mutheu Mati, Naomi Kalunde Mati, Phoeby Mwende Mati, Job Mwendwa Mati and Joan Kavinya Mati.
3. Serah Mulewa Wambua
4. Dorothy N. Mbithi
0.75 Acres
0.75 Acres in equal shares
0.75 Acres
0.75 Acres
Parcel No. Machakos/Konza North/Block I/321
Luis Nzisa Kitulu (Purchaser)
Absolutely
Shop No.6, Ukia Market
William Ngenda Mbevi
Absolutely
12. He deponed that the Affidavits of Protest filed by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Simon Musyoka Mbevi together with their proposed schedules of distribution had been considered and the proposed schedule of distribution that was originally filed with the Summons for Confirmation of Grant had been amended as per paragraph 7 above. That, the proposed distribution in this affidavit relates only to the properties identified in the petition that are associated with the household of Voethe Kalunde Mbevi (deceased).
13. That, the rest of the properties would be dealt with by the representative of the household of Esther Mbenge Mbevi.
14. He attached the search certificates for the deceased’s properties known as Ukia/Kilala/112, Ukia/Utaati/637 and Ukia/Utaati/624 as exhibits DSM 1A, 1B and 1C respectively.
15. He deponed that LR No. Machakos/Konza North/Block 1/321 was sold by the deceased’s wives, Voethe Kalunde and Esther Mbenge in 1997 to one Luis Nzisa Kitulu, and is yet to be transferred to the Purchaser. A copy of the Sale Agreement is annexed as DSM 2 .
16. It is also deponed that in the pendency of these proceedings, Plot Number 6, Ukia Market, which was originally in the name of the deceased, John Mbevi, has secretly and fraudulently been transferred to his brother, William Ngenda Mbevi. However, the family now wishes to let the property remain in William’s name as part of his share of the estate.
17. That having read the Affidavits of Protest sworn by James Muema Mbevi, William Ngenda Mbevi, Michael Mutua Mbevi and Simon Musyoka Mbevi, his response is as follows:
a) The property referred to as Plot No. 21A, Ukia Market, at paragraph 4 (ii) of the Affidavit of Simon Musyoka Mbevi, does not exist, it is a mistake and to read Plot No. 12B, Ukia Market, and may be distributed to one of the sons of the 1 st Administrator as proposed.
b) The property listed at paragraph 4(iv) of the Affidavit of Simon Musyoka Mbevi, being Konza South Block 7 (Kima) 314 , and Konza Plot No.1452 at paragraph 3(l)and 3(j)of the joint Affidavit of William Mbevi and James Mbevi, are one and the same property. The number 314 is the ballot number while 1452 is the title number . belongs to and is registered in the joint names of Esther M. Mbevi (1 st Administrator) and Kalunde Mbevi (now deceased) , the wives of the deceased. A copy of the search certificate is annexed as exhibit DSM 3 . It is not available for distribution.
c) The property listed at paragraph 3(h) of the joint Affidavit of William Mbevi and James Mbevi, Konza South Block 7 (Kima) 1897 , is also referred to as Commercial Plot No. 932 at paragraph 3(g) of the joint Affidavit of William Mbevi and James Mbevi. The number 932 is the ballot number while 1897 is the title number. It is registered in the name of Cha-Uni Investment Limited , a purchaser. It belonged to the wives of the deceased. A copy of the search certificate is annexed as exhibit DSM 4 . It is not available for distribution
d) The property known as Ukia/Utaati/Plot 12A was sold to him, David S. M. Mulinge, by the family, way back in the year 2013 at a time when the deceased’s wife, Voethe Kalunde Mbevi, was battling with ill health and funds were required in order to take care of her treatment and other needs. The family therefore held a meeting and agreed to sell the said property to one of their own. A copy of the minutes of the meeting and the sale agreement are exhibited as DSM 5 and it is only fair and proper that it should be transferred to him.
e) That the property known as Kwa Katheka Plot No.74 listed at paragraph 3(f) of the joint Affidavit of William Mbevi and James Mbevi, was sold by the deceased several years ago. It is not available for distribution.
f) The properties known as Konza Plot No. 896, Konza Plot No. 614 and Konza Commercial Plot (20ft by 100ft), listed at paragraph 3(i), 3(k) and 3(m), respectively, of the joint Affidavit of William Mbevi and James Mbevi, are non-existent as no record of these properties has been found anywhere.
g) That, he David S. M. Mulinge, has settled on a portion of Ukia/Utaati/637 where he has built his home which stands side by side with their late mother’s house and he has lived with his family for many years. That, the protesters proposal that the property be distributed to the other beneficiaries, to his exclusion, and that he be evicted and his home demolished is wrong, unfair and untenable as he has no other home anywhere. He has annexed a bundle of photographs and sketch showing how his home and that of their late mother are positioned on the ground as exhibit DSM 6.
h) That the allotment letter for the property known as Ukia/Utaati/Plot 12 has been traced and shows that the said property belonged to the deceased. A copy of the Letter of Allotment dated 11/07/1980 is annexed as exhibit DSM 7. That, there are 2 shops constructed on the Plot 12A and 12B and he, David S. M. Mulinge occupies the one for his late mother while the house of Esther Mbenge occupies the other shop.
i) That, the affidavits of protest inter alia contain proposals of distribution that are grossly unfair having included and apportioned nonexistent properties some of which are either sold or registered in other people’s names. That these proposals ought to be rejected and the schedule of distribution proposed under paragraph 7 above be upheld.
The Protests
Joint Affidavit by James Muema Mbevi & William Ngenda Mbevi sworn on 30/07/2021 and filed on 07/09/2021
18. They deponed that the deceased had the following assets before his demise;
a) Ukia/Kilala Parcel No. 112 – 1.0 Ha
b) Ukia/Utatii Parcel No. 624 – 1.2 Ha
c) Ukia/Utatii Parcel No. 637 – 0.8 Ha
d) Ukia/Utatii Parcel No. 12A
e) Konza North Block 1/321 – 10 Acres
f) Kwa Katheka Plot No. 74
g) Commercial plot No. 932
h) Konza South/Block 7 (KIMA) 1897
i) Konza Plot No. 896
j) Konza/South Block 7 (KIMA) 314
k) Konza Plot 614
l) Konza Plot No. 1452
m) Konza Commercial Plot Measuring 20FT X 100FT
19. They exhibited the grant of letters of administration issued to the late Voethe Kalunde Mbevi and Esther Mbenge Mbevi as JMM 1 .
20. According to them, Konza North/Block 1/321 was illegally sold to Luis Nzisa Kitulu because the administrators of an estate do not have powers to dispose off any property belonging to the deceased during the pendency of succession proceedings. That, the sale agreement annexed to the Summons for Confirmation of grant amounts to intermeddling and this court should find that the sale is null and void.
21. They deponed that a purchaser is not a beneficiary of an estate of a deceased person and should pursue his claim in civil proceedings.
22. That, the 2 nd Administrator has left out most of the properties located in Konza and it is prudent for the court to administer all the properties belonging to the deceased. The properties are;
a) Konza North Block 1/321 – 10 Acres
b) Kwa Katheke Plot No. 74
c) Konza South/Block 7 (KIMA) 1897
d) Konza plot No. 932
e) Konza Plot No. 1452
f) Konza Plot No. 896 measuring 30FT X 80FT
g) Konza/South Block 7 (KIMA) 314
h) Konza Plot 614
i) Konza Commercial Plot Measuring 20FT X 100FT
23. The search certificates for the above properties were exhibited as JMM 2 and proposed that the distribution be done as follows;
Asset
Beneficiary
Share
Ukia/Kilala 112
Michael Mutua Mbevi
Israel Manthi Mbevi & Muini Mbevi (Jointly) – To hold in trust for the entire family of the late Paul Musau Mbevi
Absolutely
Ukia/Utaati/624
James Muema Mbevi
Absolutely
Kwa Katheke Plot No. 74
Zakayo Nyamai Mbevi
Absolutely
Konza South/Block 7 (KIMA) 1897
Davis Sila Mbevi
Absolutely
Konza Plot No. 896
Grace Muvoye Mati
Absolutely
Konza Commercial Plot measuring 20FT X 100FT
Dorothy Mbithi
Absolutely
Ukia/Utatii/12A
Beatrice Ndolo
Absolutely
Ukia/Utatii/637
Johan Kyalo Mbevi
William Ngenda Mbevi
Two portions and a common land to be held by the administrators in trust for the other beneficiaries
Konza Plot 932
Serah Mulewa Wambua
Absolutely
24. It is their prayer that the title of land parcels numbers; Konza North Block 1/321, Konza South/Block 7 (KIMA) 314, Konza Plot 614, Konza Plot No. 1452 and Konza Commercial Plot Measuring 20FT X 100FT be cancelled and be reverted to the name of the deceased. Further that these parcels be sold and the proceeds shared equally amongst James Muema Mbevi, William Ngenda Mbevi, Jonah Kyalo Mbevi and the beneficiaries of the late Paul Musau Mbevi.
25. They deponed that the 2 nd Administrator has not annexed any documentary evidence to show that Plot No. 6 Ukia Market belonged to the deceased.
26. That, there is pending before this court HCCC No. 4 of 2020 where land parcel Ukia/Utaati/624 is in dispute.
27. They deponed that the consent to confirmation was never executed by all the beneficiaries hence it should be disregarded.
Affidavit by Michael Mutua Mbevi sworn on 30/07/2021 and filed on 07/09/2021
28. He deponed that as a son to the late Paul Musau Mbevi, who is a beneficiary to the estate of the deceased, he has authority from his siblings to represent the interest of their father in these proceedings.
29. His proposed mode of distribution and the rest of the affidavit are similar to the joint affidavit of James Muema Mbevi & William Ngenda Mbevi.
Affidavit by Simon Musyoka Mbevi sworn on 14/10/2021 and filed on 15/10/2021
30. He deponed that the house of his mother, Esther Mbenge Mbevi, has no interest in the properties listed in the affidavit sworn in support of the Summons. However, he deponed that it is imprudent and unprocedural for the grant to be confirmed in respect of only part of the deceased’s estate.
31. He deponed that the portion of the estate that relates to his mother’s household comprises of the following properties;
a) Ukia/Utaati/630
b) Plot No. 21A Ukia Market
c) Ukia/Utaati/1244
d) Konza South Block 7 (KIMA) 314
e) Commercial Plot No. 932 at Konza
f) Commercial Plot No. 1/321at Konza
32. He deponed that the identification of all persons beneficially entitled to the said estate have been ascertained and determines as follows;
Property Identification
Beneficiary
Share
Ukia/Utaati/630
Justus Makau Mbevi
Francis Mwanzia Mbevi
Julius Ndivo Mbevi
1/3 share each
Plot No. 21 A Ukia Market
Julius Ndivo Mbevi
Absolutely
Ukia/Utaati/1244
Simon Musyoka Mbevi
Absolutely
Konza South Block 7 (Kima)314
Justus Makau Mbevi
Francis Mwanzia Mbevi
Simon Musyoka Mbevi
Julius Ndivo Mbevi
As joint owners
½ of the existing parcel
Commercial Plot No. 932 at Konza
David Sila Mulinge
Whole
Plot No. 1/321 Konza North
Luis Kitulu
Whole
33. He deponed that no application for dependents is pending.
Affidavit by Johan Kyalo Mbevi sworn on 18/07/2023 and filed on the same date
34. He deponed that he is the last-born child of the deceased and the 1 st wife, the late Voethe Kalunde Mbevi. That, he has been minimally involved in the succession process as some of his siblings have kept him out of the loop as to the happenings of this succession matter.
35. He deponed that in 1997 he was already in gainful employment and his mother was of good health until her passing, and the averment by his siblings, that they had to sell part of the estate to pay his school fees and her medical bill, is untrue.
36. He deponed that he initially settled on Ukia/Utaati/624 through the blessings of his late mother and has lived on the property for 27 years developing it by planting oranges, mangoes, constructing a house and laying a permanent foundation for another house. A bundle of pictures is annexed as exhibit JK-1. That, despite this, some of his brothers have decided to disinherit him by kicking him out. They maliciously destroyed his property whereupon he reported to the police and filed a case in this court being HCCC No. 4 of 2020.
37. He deponed that his brothers maliciously destroyed his property rendering him homeless and destitute, his house was locked by William Mbevi. That he has no place to stay whenever he goes home and has to be hosted by one of his brothers or book a hotel in Wote town which is quite unfair and humiliating for him. That he reported to the police and filed a case in this court being HCCC No. 4 of 2020 .
38. He deponed that according to Kamba customary law, as the last born, he was entitled to inherit his mother’s home (Ukia/Utaati/637). That, from the mode of distribution filed in court, his brothers were bent on sharing the home among him, David and Beatrice. A picture of the house annexed as exhibit JK 2.
39. He deponed that some of his siblings were referring to him as Internally Displaced Person (IDP) and he annexed a copy of the statement by one of the beneficiaries is as JK 3.
40. His proposal is that if at all their mothers homestead is to be distributed then it should be divided between two of her sons since their sister can be allocated elsewhere.
41. He deponed that he was diagnosed with type 2 diabetes and hypertension in 1995 and was in and out of the hospital and it was impossible for him to follow up on this issue of succession.
42. That, when he signed documents relating to this succession, he was medically unfit to do so hence they should be disregarded. He has annexed a copy of doctor’s note as JK 4.
43. He deponed that he recently found out that some beneficiaries have intermeddled with the following properties;
a) Konza/North/Block 1/321 which was illegally sold to Luis Nzisa Kitulu.
b) Konza South Block 7 (KIMA) illegally transferred to Chauni Investment wherein David Mulinge is a director.
c) Shop No. 12A in Ukia Market illegally allocated to David S. Mulinge
d) Kwa Katheke Plot No. 74 which was omitted from the distribution list adduced in court.
e) Shop No. 6 in Ukia Market illegally transferred to William Mbevi.
44. He urged the court to issue orders to revert the above properties to the deceased. That if they are to be sold, it should be at the current market price. That, whoever illegally received money from sale of any part of the estate should be ordered to refund the money to the buyers.
45. That he had visited Zakayo Mbevi to talk about these issues but Zakayo died before he could convene a family meeting. That, all his attempts to communicate with the family lawyer proved futile thus necessitating the filing of the protest. He annexed WhatsApp screenshots between him and the Lawyer as JK 5.
46. His proposed mode of distribution is as follows;
Asset
Beneficiary
Share
Ukia/Kilala/112
Israel Manthi & Muini Mbevi(jointly) to hold in trust for the entire family of Paul Musau Mbevi
James Muema Mbevi
William Ngenda Mbevi
Beatrice Kinyanzui Ndolo
0.75 acres
0.75 acres
0.75 acres
0.75 acres
Ukia/Utaati/624
Jonah Kyalo Mbevi
Absolutely
Kwa Katheka Plot No. 74 (2 acres)
Zakayo Nyamai Mbevi
Serah Mulewa Wambua
Dorothy N. Mbithi
To share equally
Konza South/Block 7 (KIMA) 1897
Jonah Kyalo Mbevi
Absolutely
Konza Plot No. 896
Grace Muvoye Mati
Absolutely
Ukia/Utaati 21A
Jonah Kyalo Mbevi
Absolutely
Ukia/Utaati/ 637
Jonah Kyalo Mbevi
David Sila Mbevi
Two portions and a common land to be held by the Administrators in trust for other beneficiaries
Konza Plot No. 932
James Muema Mbevi
Absolutely
Machakos/Konza North/Block 1/321
William Ngenda Mbevi
James Muema Mbevi
Jonah Kyalo Mbevi
Grave Muvoye Mati
To share equally
47. He deponed that the consent for confirmation of grant was never executed by all the beneficiaries hence it should be disregarded.
48. The matter was heard through viva voce evidence.
Protestors’ Case
49. 1 st Protestor was Simon Musyoka Mbevi , the 4 th Administrator and he adopted his affidavit dated 14/10/2021 as his evidence in chief.
50. On cross-examination by Mr. Simiyu for the 3 rd Administrator with regard to registered owner of shop No. 6 at Ukia Market, he said that he heard that the property is registered under William’s name. He stated that he had not seen the title deed and had not done a search. He was not aware as to whether there is an agreement/transfer. He said that the previous owner was his late father and that he had not seen any agreement between his father and William.
51. On cross-examination by Mr. Mbindyo for the Interested Party, he confirmed that he had no objection to Machakos/Konza North/Block 1/321 being transferred to the estate of Luis Nzisa Kitulu.
52. On cross-examination by Mrs. Mutua for the 2 nd Administrator with regard to plot No. 12 Ukia market, he confirmed that there has been plot 12A and 12B for each house and he meant plot No. 12B, for his family and that plot No. 12A should be distributed to the 2 nd Administrator’s family. .
53. 2 nd Protestor was James Mbevi and he adopted his witness statement dated 09/11/2022 as his evidence as captured in his affidavit of protest, He indicated that he wished to put in a new statement to change the manner of distribution and the court directed him to mention the properties he had discovered. He said that the omitted properties are in Konza Ranch. His Advocate said that the properties which were in the name of the deceased at the point of death were transferred by the Konza Ranch and Farming Society to both wives.
54. On cross-examination by Ms. Munyiva for Jonah Kyalo (protestor) with regard to Ukia/Utaati/624, he said that the parcel should be given to him(James) absolutely as it was gifted to him in 1969 and he started tilling it since he was 7 years old. He said that after school, he worked with ministry of lands all his life. He confirmed that the property had not been transferred to him and that he had no photos of himself on the land. He conceded that there was no one in court to confirm that the land was gifted to him.
55. He also conceded that he and William Ngenda Mbevi were the defendants in Makueni HCCC 4 of 2020 where Jonah Kyalo Mbevi was the plaintiff claiming that they entered Ukia/Utaati/624 maliciously destroyed property. He denied the allegations.
56. On cross-examination by Ms. Mwangi for Jonah Kyalo (protestor) with regard to Ukia/Utaati/624, he said that he was gifted ½ the portion on his wedding day and the other ½ as his inheritance. That, the inheritance allocation was made by himself, William Ngenda Mbevi and Mutua Paul Mbevi and that it was not a family decision.
57. On cross-examination by Ms. Kalinga for the 1 st & 4 th Administrators, he confirmed that when he said plot No. 21 Ukia he meant plot No. 12B. He said that his 2 sisters should also have a share in commercial plot 932 at Konza.
58. On cross-examination by Mrs. Mutua for the 2 nd Administrator, he said that the affidavit dated 07/07/2023 was his final proposal. That, he should have Ukia/Utaati/624 absolutely as it was partially a gift and partially inheritance. That, he entered the land when he was 7 years old and was tiling the land, maize, beans, sweet potatoes. He denied that , Jonah Mbevi ever planted oranges, mangoes and avocadoes but it was their mother who planted them. With regard to HCCC 004/2020, he maintained that he did not destroy anything.
59. With regard to the equal distribution proposed by David Sila Mulinge, he said that Ukia/Utaati/637 belonged to his father and it was his parent’s homestead. That, it was William Ngenda Mbevi and David Sila Mulinge who were living there .
60. That there were two buildings, a storied house belonging to David Sila and the other one belonging to their mother but was bequeathed to William Ngenda Mbevi before she died. He was shown photos and he identified the green gate leading to his parents’ house, the front of the other house, the cemetery where their parents are buried.
61. That, William Ngenda partly built the house together with other members of the family i.e., David Sila, William and Jonah. That, they did so by way of contribution. That, the house was for their mother, plus rooms for themselves because they were not married. That, William has another home for his other family which is not finished but where his children live when they visit.
62. He said he could not remember when David Sila built his house but said it could be 5 years ago, less than 10 years ago. that David Sila and William Mbevi had lived on that parcel of land the longest .
63. He denied proposing that David Sila should be evicted. That this was common land for all the 20 children. He could not recall the last time they met there as a family but that, they had been meeting since 2016 when their mother died but have not been keeping records. That, many have been denied access and are only granted after coercion. He said that the home should not be distributed but Jonah could build there if he wished to live with his brother William.
64. With reference to the Konza properties, he said that there was a share certificate showing that they belonged to his father but he did not produce it. His proposal was the 10 shares be sold and proceeds shared.
65. With reference to Konza Plot No. 74 (Kwa Kaveke), he said did not need to have proof of ownership but was aware that it was sold by Zakayo Mbevi though he was not aware whether there is a title.
66. Regarding Konza plot No. 932 he confirmed that he has distributed it as per the letter from Konza. Referred to letter dated 18/10/2022 from Konza Ranching, he confirmed that the property was sold by Voethe Kalunde and Esther Mbenge to Chauni Investment Ltd and that the title deed was in the name of the new buyer. He insisted that the property was still available for distribution despite being in the title of the new owner. He said that he was not aware that plot 932 and 1987 was the same property or that 932 was the ballot number and 1987 the plot number. That, a clarification would be given by Konza people.
67. When asked why he had distributed plot 1452 Konza, he confirmed that the title is in the names of their mothers but insisted that it should still form part of the estate. As to whether plot 1452 is the same as 314, he said that the letter from Konza Ranching is vague and not legible. When asked whether he had evidence to prove ownership of Konza Plot 896, he said that it was in the letter and grant documents hence no need of any other evidence.
68. Referred to Konza plot No.1/321, he confirmed that according to the letter, it was sold to Titus Musyoka Kitulu but insisted that it belonged to his father and should be distributed.
69. With regard to Konza plot No. 614 and Konza plot measuring 20x100, he conceded that according to letter from society, the properties are unknown. He however insisted that the properties exist and belonged to his father and the society had not done a proper search or taken time to survey and locate the same.
70. Asked about his sister’s shares, he stated that he had assigned one in the Konza plots and the other - the Ukia shop. When it was put to him that he had done so knowing very well that the plots were non-existent, he insisted that they exist and if they were sold, then they were sold by his sisters and brothers. He said he did not have evidence other than his words which he insisted were the truth.
71. On further cross-examination, he said that the common land should be distributed to William and Jonah. That he had left out David Sila Mulinge from the distribution despite having a building on the land and that he has proposed distribution of common land of ¼ acre to 22 beneficiaries.
72. On cross-examination by Mr. Mbindyo for the Interested Party, he said that Tito Musyoka Kitulu was not known to him and that he was not aware of the sale of Machakos/ Konza North /Block 1/321 until he saw the documents saying so. That, the sale agreement did not bear the deceased’s name. On being shown the sale agreement, he said that the sellers were his mother and step-mother, the purchaser was Loise Kitulu and the document is dated 07/07/1997. He was not aware that 19 of his siblings consented to the sale.
73. He took the position that even though his mother sold the property his father’s name was not in the sale agreement and the property could only be rightfully sold after succession.
74. He told the court that he was appointed as an Administrator on 11/05/2021 and at the time of his testimony on 26/10/2023, he had been an Administrator for over 2 years. That, one of the functions of an Administrator is to file suits on behalf of the estate. He conceded that he had not sued anyone; that he worked in Ministry of Lands for over 30 years as senior assistant
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