JUDGMENT
1. John Nzonga Kamwathi died on 28/8/2009 aged 95 years.
2. According to the letter from the Chief Nzaui location dated 21/06/2018 attached to the petition he was survived by:
1) Elizabeth Kalondu Nzonga – wife – deceased
2) Daniel Kyama Nzonga – son – adult
3) Philliscillah Muoti Ngumia – daughter – married
4) Mary Wayua Mutua – daughter married
5) Rabeccah Koki Mwau – daughter – married
6) Esther Ndinda Joel – daughter – married
7) Jackson Mutunga Kamwati – son - married
3. His daughter Esther Ndunge Joel, and the widow of his son Jackson Mutunga Kamwathi one Jecinta Ndunge Kamwathi filed for grant of letters of Administrator of the estate intestate.
4. According to form P&A 5 his estate composed of assets :
a) Land parcel No. NZAUI/KAWALA/213
b) Land Parcel No. NZAUI/KAWALA/961
Liabilities:
c) Jesus Restoration Fellowship
d) Nguli Tom Julius
e) Peter Nzyoka Kisangi
f) Ruth Mukonyo Kivungi
g) Jennifer Taabu Nzowe
5. The Grant form P&A 41 was issued to the two petitioners on 30/09/2020.
6. On 25/11/2021 Jecinta, the 1st administrator through the firm of O.N Makau & Mulei Advocates filed Summons for Confirmation of Grant dated 21/07/2021.
7. The affidavit in support stated that she was the wife of Jackson Mutunga Kamwathi – hence a beneficiary of the estate – she listed all the other beneficiaries as set out herein above but proceeded to distribute the estate as follows:-
Asset: Beneficiary Share
NZAUI/KAWALA/213 Jacinta Ndunge Mutunga Absolutely
NZAUI/KAWALA/961 Jacinta Ndunge Mutunga Absolutely
8. The annexed consent to the confirmation of grant was only signed by herself. None of the other beneficiaries signed it.
9. This provoked Protests filed by –
1. Stella Koki Mutunga claiming to be a daughter of Jackson Mutunga Kamwathi and her mother Regina Muthoki Makiti – who she deponed had married her father in 1990 but separated in 1996. Stella questioned the legality of the 1st administrator’s marriage to her father. She annexed her certificate of birth and proceeded to claim it was her mother and her father who bought Nzaui/Kawala/96 in 1995/1996 using proceeds from sale of a parcel of land that was a gift from the deceased John Nzonga Kamwathi. She claims that, that parcel of land is not available for distribution.
2. Regina Muthoki Makiti claims to have been married by Jackson Kamwathi under the African Christian Marriage Act – now repealed, in 1990 and that Stella is her daughter with the deceased Jackson. She claims to have bought Nzaui/Kawala/96 with him and claims the whole for herself.
3. The other beneficiaries (daughters of the deceased) Philliscillah Muoti Ngunia ,Mary Wayua Mutua , Rabeccah Koki Mwau also lay claim to a share of the estate –
4. The son of the deceased Daniel Kyama Nzonga lays a claim to the estate and avers that Regina was wife of his brother, and Stella is the daughter of his brother.
10. The 1st administrator filed a response that she is the sole wife of Jackson Mutunga Kamwathi and annexed letter from the District Commissioner - Makueni dated 29/7/2005 with respect to the Estate of her husband Administration Cause 240/2005 (Machakos) where she and her two children are listed as the rightful heirs of the estate of the deceased.
11. She annexed minutes of a meeting at the DCC dated 30/03/2021, and 20/5/2021 – and she claims it was determined she was the sole beneficiary of the estate of the deceased. The minutes indicate that one Koki was recognized as a daughter of the deceased, Jackson. She also annexed a ruling from Makueni – ELC 105/2018 where the court refused to grant an injunction to Koki ( Stella) because she failed to establish an interest in the land Nzaui/Kawala/961
12. Daniel Kyama Nzonga makes the following distribution proposal
NZAUI/KALAWA/961. (Parcel 961) Total Approximate Size 10.81 Ha
ID. NO. Proposed Size
Daniel Kyama Nzong’a 2604793 5 acres
Esther Ndinda 1 acre
Regina Muthoki 11270082 11.7 acres
Jacinta Ndunge 3 acres
Angus Kiome Kyama 13615768 6 acres
NZAUI/KALAWA/213 (Parcel 213) Total Approximate Size 2.6 Ha
ID. NO. Proposed Size
Daniel Kyama Nzong’a 2604793 1.4 acres
Regina Muthoki 11270082 1.25 acres
Jacinta Ndunge 1 acre
Angus Kiome Kyama 13615768 0.75 acres
Tito Mukula 1 acre
Kasiva (deceased) 1 acre
13. He attaches minutes of family meeting of children of deceased attended by;
1) Daniel Kyama
2) Muoti Ngunia
3) Rabecca Mweu
4) Marry Mutua
5) Ndinda Meka – report
6) Benjamin Mweu - secretary
14. The minutes state that they agreed as follows;
1) John Nzonga our father shared his land to his two sons:
- Daniel Kyamba
- Mutunga each was given their plots.
2) Title deed for our father’s land should be to Daniel Kyama and Mutunga.
3) Land for Mutunga should be shared between Jacinta Ndunge and Koki Mutunga as the child to Mutunga’s first wife Regina Muthoki.
4) Land for Mutunga and Regina which they were gifted at their wedding is not among the land to be shared between his wives.
5) Whoever has sold land, or plots; Kyama and Jacinta have been given title deeds, each will transfer to those who purchased number (title deed)
6) Jacinta Ndunge to be content with her land and moves from land which Mutunga and Regina were gifted by our father at their wedding and she stops disturbing Koki and should not step there.
15. Upon perusing the foregoing I formed the view that this was a matter suitable for the application of Article 159(2) ( c) of the Constitution which makes it mandatory for the Judiciary to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. I referred the matter to Court annexed mediation. When the matter was referred to the mediator, the 1st administrator refused to participate.
16. On 19/09/2024 the court the following observations:-
1st Administrator is a daughter in law – she does not have priority rights over the children of the deceased (see) section 66 of the Law of Succession Act hence the need for her to understand her legal position – this has not been explained to her that this is not about the estate of her husband but the estate of her father in law. See section 38 of the Law of Succession Act; Intestate died leaving children and no spouse r – the estate is up for equal distribution among the children of the deceased subject to section 41 and 42.
The 1st administrator and her alleged co-wife can fight it out in the estate of their deceased “husband”.
17. I also formed the view that the mediator was not conversant with the issue she was dealing with hence proving a mediation report that whose purport could not be understood. It would appear she had not been supplied with the requite case summaries from the parties, and did not receive any assistance from counsel for the parties.
18. In order for justice to be done it is necessary that counsel in all mediation matters they are involved in cooperate by doing their duty of giving their clients the appropriate legal advice. It is not in the interests of justice for counsel to accept reference to court annexed mediation and then tell the client not to attend / not to participate. It is the Judiciary’s constitutional mandate and we all take the oath to uphold the Constitution. We do not have the luxury of picking what to uphold and what to leave out.
19. Having said that, in this matter parties took directions and Counsel agreed to make submissions.
20. I have carefully considered the submissions by each party through their counsel – Kithuka & Nafula for 1st administrator, Muumbi & Co. Advocates for 1st, 2nd 3rd objectors.
21. The 1st administrator argues that the protestors are not beneficiaries of the Estate, the protestors insist they are beneficiaries. The 1st administrator states that the daughters of the deceased are not interested in the estate – but it is evident that they are.
22. The issues for determination are:
1) Who ought to be the administrator of the estate of the deceased herein?
2) Who are the beneficiaries of the estate?
3) How should the estate be distributed?
23. On the 1st issue – section 66 provides the guide. It states;
66. Preference to be given to certain persons to administer where deceased died intestate
When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V
(c) the Public Trustee; and (d) creditors:
Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will
24. In this case the applicable part V states
38. Where intestate has left a surviving child or children but no spouse Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.
25. From the foregoing the 1st administrator as a daughter in law does not have priority over the children of the deceased. In her petition, she filed a letter from the chief that sets out who the children of the deceased are – and her late husband was just one of them. Hence the other beneficiaries are right that she does not have priority over them when it comes to the administration of the estate of their father who is her father in law.
26. In addition, the 1st administrator was acting as though this as the estate of her husband. She left out the rest of the family of the deceased herein.
27. At this juncture we must address the issue regarding the estate of her husband – she is without a doubt a wife of her late husband Jackson – and there is no doubt that Koki is regarded as a child of her deceased husband clearly whether or not Koki’s mother is a wife of Jackson is not an issue to the determined in this case – it is an issue for determination in the estate of Jackson Mutunga Kamwathi.
28. On the issue: Who are the beneficiaries? They are those listed in the letter by the chief, the ones in the 1st administrator’s papers in support of this cause together with Koki.
29. How should the property be distributed? The law in section 38 of Laws of Succession Act as quoted above states that the estate of the intestate who is survived only by the children shall be equally divided among the surviving children.
30. Evidently the proposed distribution by the 1st administrator and Daniel Kyama are not supported by law or any evidence before this court.
31. This court can only reject the same and apply the provisions of section 38 of the Laws of Succession Act. The administrators have not placed any evidence before the court that the estate had any liabilities as alleged in form P&A 5 . That means that each asset will be distributed into equal shares among the children of the deceased.
32. With regard to the Estate of Jackson Mutunga Kamwathi the 1st administrator and Koki are not disputed beneficiaries. The share that will go to his estate will be share among them in accordance with the distribution of his estate, which we cannot do in this cause in view of the contested position of the mother of Koki being the wife of Jackson. There is also no evidence here that they bought any land – and if Jackson bought land from proceeds of a gift by his father – that is about his estate.
33. This matter concerns the estate of John Nzonga Kamwathi.
34. What are the final orders?
a. That the protests are successful
b. That the grant made to the administrators herein and subsequently confirmed be and is hereby revoked.
c. That a fresh grant do issue jointly to Daniel Kyama Nzonga and the 1st administrator Jacinta Ndunge Mutunga to oversee the transmission of the estate to the beneficiaries in accordance with the certificate of confirmation of grant.
d. The estate of the deceased to be distributed in accordance with s. 38 of the Law of Succession Act, in equal shares to the children of the deceased including to the estates of those who are now deceased.
e. For Jackson Mutunga Kamwathi his share to be held in trust for all his beneficiaries by Jacinta Ndunge Mutunga and Stella Koki Mutunga.
f. A certificate of confirmation to issue accordingly.
35. Considering the nature of the matter each party to bear its own costs
36. Orders accordingly.
Dated, signed and delivered via this 14th day of March 2025
Mumbua T Matheka
Judge
Ms Nelima Court Assistant
Mr Kithuka appeared for the Petitioner
Mr Muumbi appeared for the 1st and 2nd objectors