In the Estate of JONATHAN KITUU In the Estate of JONATHAN KITUU

IN THE HIGH COURT OF KENYA AT MAKUENI

CITATION NO. E020 OF 2023

MARGARET MWIKALI KIIA…………………..…..…………. 1^ST CITOR

RUTH KIIA ………………………………………………………. 2^ND CITOR

-VERSUS-

DORIS KIIA …………………………………………………………1^ST CITEE

MONICAH KIIA……………………………………………………2^ND CITEE

DOMINIC MWANIA KIIA………………………………………3^RD CITEE

MUEMA KIIA………………………………………………………4^TH CITEE

MBWII KIIA…………………………………………………………5^TH CITEE

WANZA KIIA…………………………………………………………6^TH CITEE

MUTISO KIIA………………………………………………………7^TH CITEE

MUTUO KIIA………………………………………………………8^TH CITEE

AND

SERAH MBEKE KIIA …………………………. 1^ST INTERESTED PARTY

ESTHER KIIA ………………………………….. 2^ND INTERESTED PARTY

RULING

Jonathan Kituku Kiia died on 20/1/2022.
He was survived by his widow, the 1^st interested party, his ‘concubine’ the 2^nd interested party and children the citors and citees.
The Citation dated 3 October 2023 was filed on 6th October 2023
His estate is set out in the affidavit sworn by the 1st citor on 25th September 2023.
According to the affidavit the interested parties and all the citees except the 1st, 2nd and 3rd citees are in support of the filing of the cause in that the widows are aged and of poor health hence their inability to file the cause.
From the record, all the citees were served with the citation on 10/11/2023.
On 7/3/2024 the parties appeared before court. The 1st citor was present – the 1st, 2nd and 3rd were represented by Ms. Makau – parties agreed to proceed by way of written submissions and were directed to appear before the Deputy Registrar to confirm compliance with the court directions and to take a ruling date.
On 15/3/2024 they appeared before the Deputy Registrar and a ruling date of 6/9/2024 was given (it landed during the recess). However, the file was not transmitted to me to write the ruling.
In her supporting affidavit the 1^st citor depones that the family had various meetings in August and October 2022 but the 1^st, 2^nd and 3^rd citees have not been cooperative. She depones:

That the 3^rd respondent confiscated her biological mother’s Identity card with intent to defraud her bank account as she is old and of poor health.
That it is the 1^st, 2^nd and 3^rd respondents who collect the rents of the family businesses but they do not account for the monies collected from her father’s properties since he passed on in January 2022 now amounting to Kshs. 4,028,000 since rent collected is 212,000 per month.
That on a visit to her late father’s land she found intruders in the land and when she asked them, they PROUDLY AND ROUNDLY told her that they had leased the land from one Mr. Dominic Mwania Kiia and when she became more tough they said that they were his employees and the said is the 3^rd Respondent who happens to be her 2^nd born biological brother.
That already one major tenant belonging to her father was thrown from the hotel he was working from by the 2^nd and 3^rd respondents immediately after her father died even before he was buried.
That the rental income from their property is not equal and property distributed to each family member and the property is now dilapidated.
That the both interested parties are indeed in bad health, old age, they have high blood pressure, they are both diabetic and need good quality food and medication every day.

The 3^rd citee filed a replying affidavit on 5/2/2024 with the authority of the 1^st and 2^nd citees and the 1^st interested party.
He deponed that his father and mother were married when his father was a court clerk and she, a nurse and that together they had acquired numerous properties as shown in the annexure DMK3.
That upon his father’s death a burial dispute ensued between the 1^st interested party and the 2^nd interested party with respect to place of burial in Makindu SPMCC E05 of 2022 the outcome of which his mother was declared the only legal wife of the deceased and the body released to her for burial vide the court’s judgment of 25/4/2022 – and the 2^nd interested party was declared a concubine. That thus notwithstanding the advocates for both sides have been holding meetings with family members to find an amicable solution to the distribution of the estate. He depones that the 1^st citor is biased and insincere;

That the 1^st citor is completely biased and insincere as she has already tried to allocate to herself his mother’s matrimonial house in Machakos town. This she has tried to do using the police. He has annexed marked “DMK – 5 a copy of an official search of Muputi/Kiima/102 and a report recorded at Machakos Police Station OB 22/24/9/2023 where she states that the house belongs to her, a fact she knows is false.
That pursuant to the police report made above, his mother, the 1^st interested party intervened and set the record straight. He has annexed marked “DMK-6” a copy of a letter dated 30^th October, 2023 by his mother to the ODPP, Machakos.
That indeed he has had several meetings with his advocate and Mr. Pius Mutuku advocate in an endeavor to identify all the assets in the name of his deceased father and the liabilities with a view to an amicable, fair and just distribution based on the historical background he has detailed above. He has annexed and marked “DMK -7” hand written copies and typed copies of material used in the meeting.
That his parents were in a Christian monogamous marriage and thus the property of his parents is not subject to Akamba Customary Law and Practices but statutory law which governed them during their marriage life.
That the numerous alleged meetings referred to in the citor’s supporting affidavit were never attended by his mother or the 1^st, 2^nd citees and himself. Indeed, these were intermeddlers and busy bodies who have no role in this succession.
That his mother has not consented to the filing of this citation and even wonders why the 1^st citor would want to inherit her property whilst alive.
That he is interested in an amicable settlement of the issues first, but should that fail, his mother and her children will proceed and file a succession cause and any party who has any claim backed by law can join or challenge the succession cause.

On 6/3/2024 the 1^st citor filed a supplementary affidavit. She deponed that the 3^rd citee was escaping the real issues as his intention was to delay obtaining of the letters of administration. That the 3^rd citee was intermeddling with the estate and benefitting from its rents at the exclusion of all the other beneficiaries. That the 1^st interested party was suffering from dementia, and was wheel chair bound; that the 1^st interested party only lived with the deceased for 17 years and was separated for 43, during which the deceased lived with the 2^nd citee –

That during the 43 years the deceased lived away from the 1^st interested party he co-habited with the 2^nd interested party and out of the said union six issues came forth namely: -

The 2^nd citor – Ruth Kiia
Muema Kiia
Mbwii Kiia
Wanza Kiia
Mutiso Kiia
Mumo Kiia

That she sincerely believes that these step children and their mother the 2^nd interested party are entitled to property of the deceased.
That though there was a burial dispute as to where the deceased was to be buried, this has got nothing to do with the administration of the estate of the deceased.
That the 1^st, 2^nd and 3^rd citees were always hostile to the deceased and 3^rd citee beat the deceased on 5/8/2009.
That with regard to the Machakos property referred to by the 3^rd citee – that the deceased had leased the property to her as attested by the tenancy agreement MMK1, pleadings in the divorce proceedings MMK2.

The 3^rd citee also filed a supplementary affidavit.
He reiterates that he and the 1^st, 2^nd and 3^rd citees and the 1^st interested party are interested in finding an amicable distribution of their father’s estate – that his mother was working and contributed to the purchase of the properties.
He denies wasting his father’s estate and proceeds to demonstrate that had indeed been protecting the same.
He makes reference to the burial dispute and the fact that the 1^st interested party is opposed to the appointment of the citors as the administrator of the estate – a letter is annexed from her stating the same. He challenges the citor to produce any medical evidence to prove that the 1^st interested party has dementia and unable to understand what is going on.
I have carefully considered the application and the issue for determination is who should be allowed to be the administrator of the estate.
For the avoidance of doubt unless otherwise established the citors and citees must be made aware that the estate herein belongs to their father and none of the properties belong to any of them. That it is their mothr the 1^st interested party who has the a life interest in the net estate intestate. They must always submit to that position. In addition , in the law of succession none of the children of the deceased has a superior right over the other, they are equals among equals.
For purposes of citations, Rule 22(1) of the Probate and Administration Rules is explicit that:

“A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.”

In re Estate of Kiprono Arap Misoi (Deceased) [2021] eKLR the Judge states

The scope of a citation, to my mind, is limited and therefore cannot be the forum for determining the respective claims and identities of the beneficiaries. As was aptly stated by Hon. Sitati, J. in John Osicho v Hana Omolo Osewe & Another [2013] eKLR

“A Citation is a document issued by the Probate Registry, whereby the person being the claimant (Citor) calls upon the person cited (Citee) to provide a reason why a particular step should not be taken; … Citations occur in both contentious and non-contentious probate. In non-contentious Probate, they serve the purpose of bullying along or fast tracking the issue of a grant of letters of administration.”

The purpose of a citation is well explained in Josiah Muli Wambua [2014] eKLR, that:

“In intestacy, citations issue only in cases where no petition has been lodged in court. Citations are intended to trigger the process of applying for letters of administration intestate in circumstances where the persons entitled to apply are not willing or are slow in moving the court in that behalf. The citor should not be a person who has himself already applied for the grant, for the citor should only apply for grant after the citee fails to so apply.”

Rule 22 of the Probate and Administration Rules refers to citation to accept or refuse or to take a grant.
The issue here is whether or not the citor should be allowed to take a grant and whether or not the citees who are of equal standing should accept or refuse.
Together with the citation the 1^st citor has filed numerous pages of minutes of the family (absent 1^st, 2^nd, and 3^rd citees) and members of the clan, extended family.
There is filed in the court file a document dated14/1/2023 stating ”The National Amutei Clan Association herein undersigned with the consultation of other family members present in the meeting held ,,, on 14/1/2023 unanimously approves Madam Margaret Mwikali Kiia as the leader and guide of the estate ,,, too [WILL] act as the spokeswoman/lady in the matters concerning the preparations of discovery and distribution of the estate of the late father” it is signed by one Martin Wambua Kivala General Chairman.
Who is eligible to obtain letters of administration? A beneficiary of the estate or a person who is beneficially entitled to the estate. That person can be found described in s. 29 of the LOSA. The priority is defined by s. 66 of the same LOSA.
In this case the deceased died intestate. He is survived by his widow, the first interested party, her children and the children of his ‘concubine’.
The 1^st interested party as the spouse has priority. S. 66 states

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

However, it is indicated that due to advanced age she is unable to do so. However, she has not renounced her position, and has allegedly expressed distrust for the 1^st citor.
That notwithstanding, all the children of the deceased have equal priority.
The 1^st citor appears to have the favor of the clan.. Rule 26 of the Probate and Administration Rules speaks to the issue

Grants of letters of administration

(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

Hence if the appointment by the clan is meant to circumvent the legal provisions, it is null and void. The consents of the others or their renunciations must be exhibited
In this case – there are two camps the camp of the 1^st citor and the camp of the 3^rd citee all of whom are children of the same mother but with different interests in the estate. Their mother is still alive – yet they behave as if she is deceased.
A perusal of the record and judgment in the burial dispute reveals that the deceased had noted this unacceptable stand in the children of the 1^st interested party. In a letter dated 13/8/2020 produced in the dispute the deceased had written “… Mrs. Serah Mbeke is my 1^st wife. I love her and l care for her… Now she is being misled by her adult children who want to take my property using her. That is wrong …
They must always remain alive to the fact that the property of the estate does not belong to them and as long as their mother is alive she has a life interest in the estate of her husband. She deserves that respect if nothing else.
Whether or not their mother contributed to the acquisition of the property it is for her to say whether she is raising that claim but only during the distribution of the estate. 1^st citor and the 3^rd citee are too vested personally to hold the best interests of everyone in the family and it is apparent that they have personal differences that would only drag this matter on due to their differences.
The court holds the discretion to determine who gets to proceed with the matter from here in the best interests of the estate and in the interest of justice and it is my view have not expressed strong personal positions in the estate and will represent all interest can move this forward.
In the circumstances I find that the 1^st Citor and the 3^rd Citee having taken positions with respect to the estate would not be suitable administrators.
It is my view that family matters ought to be given the opportunity to bring all the family members together to resolve family matters amicably, with each member always conscious of the fact that the property of the estate does not belong to them but to the deceased and to show respect to the person who has left them material things to enjoy in his absence. These things should not become the source of acrimony but a source of family unity in paying homage to their father’s legacy. In line with article 159(2)which states inter alia In exercising judicial authority, the courts and tribunals shall be guided by the following principles

(a)…

(b) justice shall not be delayed; (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)

And in the spirit of social transformation through access to justice this family of the late Jonathan Kituu Kiia has an opportunity to agree on who would be administrators, and even, ultimately on the distribution of the estate. They will have 30 days from today to do so.
In default and to allow representation of everyone, the following will proceed and obtain letters of administration for the estate of the deceased: -

Serah Mbeke Kiia
Doris Kiia
Mbwii Kiia

These parties are to prepare the petition to be filed on the 31^st day from today’s date in the event that the family fails to agree.
To that end the 1^st citor, and 3^rd citee are hereby directed to surrender all the documents they have with respect to the estate to their respective counsel and or the appointed administrators within 7 days hereof to enable the filing of the petition.
Each party to bear its own costs
Mention on 4^th November 2024 for compliance.

Orders accordingly.

Dated, signed and delivered via virtually 20^th September 2024

Mumbua T Matheka

Judge

Ms Nelima/ Ms Elizabeth Court Assistants

1^st Citor present

Mr. Makau for 1^st, 2^nd , 3^rd Citees and the 1^st Interested party