In the Estate of MUKUSYO MULWA

1. Mukusyo Mulwa died intestate on 15/05/1977.  He was survived by Marisela Nditiva and his two daughters Brigit Ndeve Mukusyo and Veronica Mulundi Mulwa. By the time of his death his two daughters were already married under Akamba customary law and each was in her matrimonial home. Each had children,

2. Around 1979 Veronica returned home with her children.  In 1980 Brigit died and was buried at her husband’s home. In 1983 Marisela died.

3. The facts are mixed up a bit but Nthambi Nangea came to Mukusyo’s home as an Iweto, of Marisela.  I say they are mixed up a bit because she says she was the iweto of Marisela, the objectors say she was, Veronica denied it but when her son testified he claimed his mother Veronica married Nthambi for Marisela.

4. Veronica Mulundi Mulwa filed Succession Cause no 210/1999 on 25/5/1999 at Machakos High Court on the ground that she was the daughter and only survivor of the deceased. She listed his estate in the form P&A 5 dated 20/5/1999 as LR. Makueni/Kako/197 indicated as measuring around 35 acres.

5. On 17/3/2000 Veronica Mulundi Mulwa was issued with certificate of confirmation of grant for the whole parcel LR. Makueni/Kako/197now indicated to be 51 acres and she proceeded to transfer the property to herself.

6. It is the foregoing that provoked a case in the ELC court by the objectors and the interested party seeking their share of the estate. However, that case was dismissed as the ELC court found that the issue was not a land matter but a succession cause for the Probate and administration Court.

7. That led to this summons for revocation of grant dated 26/05/2021 seeking orders: -

a) The application herein be certified urgent, service thereof dispensed with and the same heard ex parte in the first instance due to its urgency.

b) The grant of letters of administration intestate in respect of the estate of Mukusyo Mulwa issued to Veronica Mulundu Mulwa by the High Court of Kenya at Machakos on 27th August, 1999 and subsequently confirmed on 17th March, 2000 be revoked.

c) The purported administration of land parcel No. Makueni/Kako/197 measuring 51.0 acres belonging to the late Mukusyo Mulwa now registered to Veronica Mulundu Mulwa be nullified and the same reverted back to the estate of the deceased for proper administration.

d) A fresh and proper grant for letters of administration intestate for the estate of Mukusyo Mulwa be issued to Nthambi Mangea, Catherine Ndulu Mulemba and Philomena Wanza or such other persons as the court deems fit.

8. The main grounds for the application are that the petitioner fraudulently failed to disclose that the deceased had other beneficiaries namely: -  Nthambi Mang’ea the iweto of Marisela Nditiva the wife of the deceased and her 8 children; her sister Brigit Ndeve Mukusyo her own sister and her 13 children.

9.  The summons is supported by the affidavit of Catherine Ndulu Malemba sworn on her behalf and that of her sister Philomena Wanza both daughters of Brigit Ndeve Mukusyo. She depones that she and her siblings as grandchildren of the deceased are beneficially entitled to the estate of their grandfather. She also confirms that Nthambi Mang’ea interested party was in the iweto marriage with Marisela.

10. Vide a replying affidavit filed on 22/7/2021 the petitioner deponed that the applicants are not bonafide beneficiaries of the estate of the deceased Mukusyo Mulwa, and that Nthambi Nangea was not married as an iweto during the life time of Mukusyo Mulwa but was her (Veronica’s) tenant at will. That her sister Brigit, the mother of the two applicants was a married daughter of the deceased. That neither Brigit nor her children are beneficiaries of the estate of the deceased, Brigit’s interest terminated when she died as she never claimed her share when she was alive, and their father pre deceased Brigit.

11. The Petitioner annexed to her affidavit copies of Summons for revocation of grant dated 10/6/2023 where Nthambi Mang’ea in her affidavit as the interested party deponed: That the deceased Mukusyo Mulwa had only two daughters, the petitioner Veronica Mulundu Mulwa and Ndeve Kyengo (deceased); That in 1987 she got married to Nditiva Malinda the wife of the deceased through the Kamba customary law and rites in an iweto marriage. She deponed further that both the daughters of the deceased were married in accordance with the Kamba Customary Law and rites and therefore are not entitled to benefit from the estate of their deceased’s father.

12. The petitioner also annexed the judgment in Makueni ELC 15/2019 where the applicants and the interested party had sued the petitioner for their share of the estate of the deceased. The case was dismissed by the court for want of jurisdiction, the court stating that the matter was not a land dispute but a succession cause issue.

13. It was the Petitioner’s position that the estate was already distributed and the matter was already finalised, and there was no room for this application.

14. Counsel for the petitioner also filed grounds of opposition on 22/7/2021: - to the effect that; That the application is incompetent, incurably defective and an abuse of the court’s process; That the matter herein was marked as finalised and/or closed hence the application herein is a non-starter and cannot be entertained in the manner it is presented.

15. The applicants through Catherine Ndulu Mulemba filed further affidavit on 23/11/2021 and pointed out that the Petitioner had filed the matter under The Law of Succession Act despite the fact that the deceased died before the Act came into force, and that the LOSA is clear on how an intestate estate ought to be distributed; That the woman-to-woman marriage of the interested party was not during the lifetime of the deceased – however, all the parties had a right to inherit. That though their mother was deceased, and though she was married she was still entitled to her share of the father’s property, that the estate of the deceased was still intact.

16. On 26/4/2023 Veronica Mulundi Mulwa died and was replaced by her son – Peter Mutuku Mulwa after he obtained letters of administration for her estate to enable him take over the matter.

17. The objection was heard by way of viva voce evidence.

18. The 1st applicant testified and reiterated the contents of her affidavit and written statement that deceased was her grandfather because her mother Brigit was the only sister of Veronica. On cross examination she told the court that her mother was married and died in 1980, her grandfather died in 1977. She said that the maternal grandmother died in 1980 – that Veronica was married but came back to her parents’ home after 1977. She testified that the interested party was occupying some of the land – all the time that Veronica was in occupation. She testified that the interested party was married by her grandmother at a time when Veronica and her mother Brigit were married and away from home.

19. DW2 was one Sophia Mutio Mutua a sister to the 1st applicant who testified that Veronica left her marriage and came home in 1979 and that Veronica lied when she said she was the only child of her father. That the interested party, Nthambi was married after the demise of deceased – and had a place in that land where she called home.

20. The applicants closed their case.

21. The interested party testified that she was married by Marisela wife of Mukusyo and has lived in Mukusyo’s home for 44 years. She testified that when Marisela married her, her daughters were already married out – that when Veronica separated from her husband and came back home she found her – Nthambi already married. That when Marisela died in 1980 and she continued to live on the land with Veronica. She said she was married by Marisela so that Marisela’s line would not be extinct.  She denied filing any suit in Machakos or signing any documents in the office of advocate Kimeu, she denied selling any part of the land to one Peter Mbuli, and that it was one Kyalo who had sold the land and gave money to her to educate her children and that the money was refunded by Peter Mulwa son of Veronica. She testified that portion of the land she lived on had not been surveyed, but that that was her home and her children are buried there.

22. The Interested party closed her case.

23. The Petitioner’s son Peter Mutuku Mulwa testified that his grandfather, died on 15/5/1977 when he was around 10/11 years old; He confirmed that his father was one Mulwa; that he was born on Mukusyo’s land; He confirmed that his grandfather had two daughters – his mother and her sister – Brigit who died in 1980, and his grandmother who died in 1983. He testified that the land was occupied by his mother, his siblings and the interested party; He testified that his cousins (the children of his Aunt Brigit) had no right to inherit their grandfather’s land because their mother was married. He testified that his mother was married but divorced in 1960; He testified that it was his mother who married the interested party Nthambi and brought her to bear children for Marisela after Marisela’s husband died. He testified that it was his mother who brought the interested party to the home and that the interested party was a beneficiary of the estate. He asserted that Nthambi was wife of his mother – that his cousins were living at their father’s land and were not entitled to the estate. He testified that Nthambi was occupying about 10 acres of the estate. He claimed that his cousins had consented not to inherit the property. He also took the position that his grandmother’s entitlement died with his grandmother.

24. PW2 was Julius Mulei Mutangili aged 70 years old. His testimony was that deceased had one wife who had 9 children. That he had two daughters. That he, PW2 was called to testify on Kamba customs – that when a girl is married – returns home and does not return the dowry goats, she does not belong to that home – that Veronica returned ‘goats dowry’. It was his testimony that  Nthambi Nangea was married by Veronica so that she would live with her mother. Marisela. He however stated that Nthambi was wife of Marisela, and that the children she had were Marisela’s. In the end he said he moved from the area in 1969. He said Nthambi was given land and she sold.

25. The petitioner’s case was closed.

26. Parties agreed to file written submissions which I have considered.

27. The applicants set out for determination of the following issues: -

i. Whether the petitioner disclosed all the beneficiaries in respect of the estate of Mukusyo Mulwa culminating to the grant of letters of administration intestate dated 27th August, 1999 and its subsequent confirmation on 17th March, 2000 and if the petitioner obtained the same fraudulently.

ii. Whether the estate of Mukusyo Mulwa was administered and distributed by law required to his beneficiaries.

iii. Whether the court should proceed to nullify the grant and certificate of confirmation of grant issued to the petitioner for having fraudulently obtained a material non-disclosure and unlawful administration.

iv. Whether the court should upon nullification of confirmation of grant should cancel the registration of land parcel No. Makueni/Kako/197 in the name of Veronica Mulundi Mulwa and direct the same to revert to Mukusyo Mulwa for proper administration among all the beneficiaries of his estate.

28. The applicants rely on Rule 26 and & 7 (7) of the P&A Rules and the interpretation in Kisumu High Court Succession Cause No. 795 of 2014: In the matter of the Estate of Claudia K. Ouma where the court held: -

29. On this issue they also rely on Beatrice Mbeere Njiru –vs- Alexander Nyaga Njiru among others.

30. On the claim that daughters married under Akamba customary law could not inherit, it was submitted that that was discriminatory and cited Kiambu High Court Civil Appeal NO. 32 of 2018: In the Matter of the Estate of Esther Njoki Muhwanga (deceased) Antony Mukwanga Wambui vs- Joseph Maina Muhwanga & Another where it was held that: -

31. On whether or not the appellants as grandchildren could inherit – from their grandparents: they cited in Re Estate of Florence Mukami Kinyua (deceased) [2018] e KLR where the learned the judge stated:

32. This was also the position of the judge in Re Estate of Wahome Njoki Wakagoto [2013] e KLR where the Judge held: -

33. And in Kakamega High Court Succession Cause No. 661 of 2015: In the Matter of the Estate of Imoli Luhatse Paul (deceased) where the judge held:

34. Relying on section 76 of the Law of Succession Act, the applicants urged the court to revoke the grant as was held in Bungoma High Court P&A Appeal No. 69 of 2019 In the Matter of the Estate of the Late Murei Manyambe: Gilbert Marango Mulei vs- Edwin Marango Wanjala where the judge upon making the following observations:

35. The Court held “For the foregoing reasons, I find merit in the appeal and consequently make an order that the grant of letters of administration issued to the respondent on 11th July, 2018 and confirmed on 31st July, 2019 be and is hereby revoked in its entirety. The dependents to apply for fresh letters of administration. Costs to the appellant.

36. They also rely on Nyeri High Court Succession Cause No. 100 of 1991 In the Matter of the Estate of Andrew Mwai Wahome (deceased): Agnes Wanjugu Ndunyu & Another vs Godfrey Nguyo Mwai & 2 Others where the judge held:

37. On the orders to issue upon revocation; the rely on Migori High Court Succession No. 41 of 2016: In the Matter of The Estate of Magangi Obuki (deceased); Patrick Arasa Magangi –vs- John Gati Boke where the grant was revoked, the Registrar of Lands was  directed to cancel the transfer of land of the land to the petitioner and to revert it to the deceased, the objector and other beneficiaries were directed to agree or apply for fresh grant of letters of administration of the deceased estate grant within sixty (60) days of the order of the court.

38. In the submissions for the interested party, it was argued that the interested party fell under section 29 of the LOSA where it states:

39. It was submitted that the evidence of Peter Mutuku Mulwa could not be relied on because it was an attempt to remove the interested party from the shoes of Marisela Nditiva and equate her with a child of Veronica. That Peter Mutuku’s witness did not help either because he did not seem to know much about the deceased and his family or even the Kamba customs.

40. The interested party relied on Monica Jesang Katam –vs- Jackson Chepkwony &Another (2011) e KLR where the Judge stated

41. On how the estate should be shared to include the interested party, as a woman to woman marriage, it was submitted that there was guidance in Re matter of the Estate of Musau Ngau (deceased)2008 e KLR where the Judge stated that the iweto wife in a woman to woman marriage inherits from her husband, the woman who married her. Where the estate is that of the deceased husband of the woman who married her, she can only get a share of what the wife to the deceased gets. She can only inherit from her own husband. The Judge proceeded to award the iweto wife half of what the husband was entitled from her own husband, the deceased.

42. For the respondent (petitioner), it was submitted that the issues for determination were: -

a) Whether or not the applicants and interested party are rightful beneficiaries of the estate herein?

b) Whether or not the petitioner obtained the grant herein fraudulently.

43. It was argued for the respondent that the deceased died before the commencement of the LOSA and reliance was placed on section 2(1) (2) of the Act. She submitted that; The deceased herein having died before the commencement of the Law of Succession, his estate was subject to the AKamba Customary Laws and as rightly pointed out by respondent’s witness John Mutangili, a married daughter under the AKamba Customary Law was not entitled to inherit from the father’s estate. Further, that both the deceased herein died in the year 1977 and the mother of the applicants herein died in the year 1980 respectively before the Law of Succession came into force in 1981.

44. It is argued that even though AKamba customary Law may be discriminatory, the applicant’s mother having been married and buried at her husband’s home her children could not inherit from their grand father’s estate.

45. Further that even if the court were to find that the LOSA was applicable to the applicants, section 29 of the LOSA would apply to them and they would have to establish that they were dependants. The section provides for dependant’s states who they are:

46. It was submitted that section 29 rules out the applicants as they were not dependants of the deceased

47. It was also submitted that the Interested Party was never married by the deceased, was not a widow of the deceased and therefore could not inherit from the estate of the deceased.

48. With regard to the question as to whether the children of Brigit including the applicants were beneficially entitled to the estate, it was submitted that they were not for the reasons that; The applicants are claiming to be beneficiaries of the estate herein by dint of section 41 of the Succession Act which enables grandchildren to step into the shoes of their own parents and as per the said section of the law, the grandchildren are entitled to a share which their parent would have taken had he not predeceased the intestate. The Petitioner relied on in Re Estate of Florence Mukami Kinyua (above)

49. It is submitted that in this instance case, the deceased herein died in the year 1977 and Brigit Ndeve died in the year 1980. Clearly she did not predecease the deceased for her children to step into her shoes

50. With respect to the interested party it is submitted that her own authority – In Re Matter of the estate of Musau Nguu (deceased (2008) e KLR- was clear that she could not inherit from the estate of Mukusyo but from Marisela or whoever her iweto husband was.

51. It is submitted that the deceased’s wife left no estate and as per the evidence on record as at the time the interested party got married in the year 1987 as pleaded, the deceased’s wife was also dead and this means she was married by Veronica Mulundi as testified by the respondent and can only benefit through her. That the petitioner’s averment in the form P&A 5 she filed the petition as the sole survivor of the deceased was not a lie – it was true because her only sister was deceased.

52. The respondent cites section 35 of the LOSA and argues that after the death of the deceased herein in 1977, the estate devolved to his spouse Marisela. She had a life interest in the estate.  That Brigit Ndeve died in the year 1980 during their mother’s life interest in the estate, and upon their mother’s death in 1983, the estate devolved upon Veronicah Mulwa who was the surviving child. That this was the fact and she had not mislead the court in obtaining the letters of administration herein.

53. On an issue raised that the respondent lied about the size of the land in the P&A 5 form. it was submitted that it was not the petitioner misleading the court but it all had to do with the registration process of the land whereby at the time of the filing the acreage was approximated but at registration the actual acreage was known.

54. With respect with the disparities within the certificate of death – it was argued that the petitioner was not the maker of the document and could not be faulted on its contents.

55. The respondent submitted that the applicants and the interested party had not established a case to warrant revocation of grant. It was submitted that the estate was fully administered and the administrator had rendered an account to the Honourable court pursuant to section 83 of the Law of Succession Act and subsequently the file was marked as closed. That no application to re-open the case had been made and as such the subject application was a non-starter.

Analysis and Determination

56. Having looked at the pleadings and rival submissions, it appears to me the following issues arise for determination;

a) Which law governs the estate of Mukusyo Mulwa, the Law of Succession Act or Akamba Customary Law,

b) Is the Summons for Revocation of the Grant incompetent and a non- starter on account of administration of the estate by Veronica Mulundi Mulwa.

c) Who are the rightful beneficiaries of the estate?

Which law governs the estate of Mukusyo Mulwa, the Law of Succession Act or Akamba Customary Law

57. The evidence on record is that the deceased was a Mukamba who died before the commencement of the Law of Sucession Act hence the applicable law is AKamba Customary Law. The petitioner argues that a married daughter is excluded from inheriting from her father’s estate. Further, the applicants being the are children of a married Mukamba girl are also excluded from the inheritance. Secondly under the LOSA they are also excluded because their mother died before the deceased. The Petitioner places herself squarely into AKamba customary law on the ground that she divorced her husband by returning the goats dowry., unlike her sister who remained married, died at her husband’s home and was buried there. She gives herself priority on the ground that by returning her dowry she regained her ‘daughter status’ while her sister died and was buried in her ‘wife status’. Her argument is that a married woman became a member of the family where she got married and could not come to inherit in her father’s home.  But, a woman who left her husband was entitled to her father’s property.

58. It is an undisputed that the deceased died before the Act came into operation.  Section 2(2) thereof provides that;

59. The respondent commenced the administration of the estate in 1999, long after the Act had become operational It is under stable why she has placed a lot of weather on AKamba customary law arguing that at the time of his death the deceased, the applicable law was AKamba Customary Law.

60. The import of the above section, where the intestate died before 1981, the estate would be administered in accordance with the applicable laws and customs existing at the time of the death. However, the procedure applicable would be the LOSA.

61. Let us begin with the respondent’s own position. At first she denied that she was married, that the name Mulwa belonged to her father. However, her son and other witnesses confirmed that she was indeed married in Kangundo. She left her marital home and came home. She did not produce any evidence to prove that she indeed returned her dowry. The witness who was called to speak about AKamba customary law did not know her well. Hence even for the respondent there was no evidence to establish the fact that she indeed returned her dowry as alleged and therefor regained the allegedly hallowed daughter status as compared to the wife status.

62. Having decided to commence the administration of the estate under the LOSA, the respondent became bound by its provisions, one of which was to abide by the procedural requirements. Key among was to identify all the beneficiaries of the estate of the deceased and to name them, and to obtain their consent.

63. The Petitioner conceded that the deceased was survived not just by herself but the children of her sister, and that the interested party was brought to her father’s home as an iweto and. was occupying a portion of her father’s land

64.  Every action she took will be looked at through the lens of the LOSA. The LOSA is not discriminatory. It does not know a married daughter from an unmarried daughter. Customary law is not stuck in pre 1981. It has a life and I am certain it has lived through that period, and to date cannot be the same. What my brother Musyoka J said in re Estate of Seth Namiba Ashuma (Deceased) [2020] eKLR, agrees with me. He said;

65. To strengthen this position, it would be unconscionable to apply a custom that derogates from substantive justice. Section 3(2) of the Judicature Act, Cap 8 Laws of Kenya speaks to this thus;

“The Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Relations Court and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”

66. I do not subscribe to the concept a common African Customary law, because in my view there is none. My view is that each different Communities in African have our different customs and they cannot just be lumped together as African. Among the Akamba, I am aware that there are certain customs that still prevail whose existence and application raise justice questions whose answers may lie in the customs. In this case all the parties herein are Akamba and court could apply AKamba Customary Laws in determination of some issues as long as the result would not be the violation of any rights or is inconstant with the Constitutional values.

67. In this case, it all comes together to the conclusion that the applicable law is the Law of Succession Act.

Is the Summons for Revocation of the Grant incompetent and a non- starter on account of administration of the estate by Veronica Mulundi Mulwa The argument that this matter was finalized and as such, the application herein is untenable? It is a misconception. Unlike kawaida civil cases, succession proceedings have their own procedure and the applicable law here is section 76 of the Act which provides;

68. There is no time limitation except, the test of reasonableness.  In re Estate of Josephine Magdalena Motion (Deceased) [2016] eKLR the court said

Who are the rightful beneficiaries of the deceased?

69. The Petitioner’s position that between her and her sister she was the only one beneficially entitled to the estate was based on Akamba customary law and s. 41 of the LOSA.  With respect to the interested party, that she had nothing to inherit as her iweto husband had only been entitled to a life interest which died with her.

70. Let us begin with the interested party.

 AKamba Customary Law on woman-to-woman marriage with regard to inheritance

71. Our jurisprudence in family law recognises the iweto marriage and precedents abound in our law reports as in Kenya it is not peculiar to the Akamba people. In this case all the parties agreed that the interested party was in an iweto marriage. The dispute was who was her husband between Veronica and her mother Marisela.

72. According to the evidence of the parties before this court, the interested party and applicants’ position is that she was the iweto wife of Marisela wife of the deceased. On the other hand, petitioner’s son’s evidence was that she was married to his mother, Veronica.

73. In her statement dated 30/05/2022, the Petitioner stated that the interested party was not married during the lifetime of the deceased and was not married by the deceased so as to claim a share as a beneficiary.  She also stated that the interested party was peacefully in occupation of the subject land together with her children and some of the children are buried there. That her efforts to give the interested party a title to the portion were thwarted by the applicants who placed a caution before filing the ELC matter.

74. The petitioner’s son, Peter Mutuku, testified that the interested party was married by his mother in order to bear children for Marisela after Marisela’s husband died. In the submissions, the petitioner contended that Marisela was dead at the time the interested party got married hence it can only mean that the interested party was married by Veronica. Reference was made to an affidavit by the interested party where she deposed that she got married in 1987.

75. The ELC judgment captured the evidence of the parties before the court where Catherine Ndulu testified that; Nthambi got married to her grandmother under AKamba customary law before 1980. In cross examination, she said that she didn’t know exactly when they got married but could authoritatively state that they were married under AKamba customary law. The interested party testified that she could not remember the year she got married to Marisela but it was before the death of Brigit. In cross examination, she stated that she was married to Marisela in the 1980’s and her dowry was paid by Marisela while in the company of elders. Veronica testified that Nthambi Mang’ea was known to her and was married to Marisela Nditiva in a year she could not recall.  In cross examination, she stated the she (Veronica) was not married to Nthambi.

76. The body of evidence before me points to the fact that the interested party was married to Marisela in a iweto marriage after the death of her husband.  I am satisfied from the evidence on record that Nthambi was the iweto wife of Marisela wife of Mukusyo.

77. . What is her place in the deceased’s estate? In Re Estate of Musau Ngau (supra), the learned Judge held that an iweto is in the same position as any wife and can only inherit as a wife of her husband and not of her husband’s husband. He confirmed that an iweto is entitled to the deceased’s estate through her wife.

78. There is mention of children of the interested party but there no evidence that any children were born to the interested party when Marisela was alive or whether the interested party came with any children whom Marisela took in.

79. What is her inheritance as an iweto? The argument of the respondent is that the Marisela only had a life interest and upon her death her own wife was left with the shell of what would have been her inheritance.

80. Again, the concept of life interest has been interpreted to consider the contribution of the wife to the estate her deceased husband. Otherwise the assumption is that the woman made no contribution at all either in the acquisition of, development or preservation of the property of her husband while he was alive. That is a false assumption because we are all alive to the unseen, unacknowledged, unvalued contribution made by women. In this home there were daughters who were married under Akamba customary law. Dowry must have been paid.

81. In addition to ensure that the family name in the husband’s side did not die Marisela married an iweto.

82. In any event the concept of iweto was such that the woman without child or without a male child to continue her progeny after the daughters got married would ensure that her family line was not extinguished. Something akin to modern day surrogacy without and adoption. An iweto could come with her children and once the customary rites were performed they became the iweto’s. She could bear children by a chosen male donor or her own choice. The children belonged to the iweto husband. Could this custom have been designed in the manner proposed by the Petitioner?

83. That cannot be. The intention, the purpose of the iweto marriage was the continuation of the lineage of the wife and in totality, the family of the deceased. It could not have been designed to leave in such a manner as to render the iweto homeless the moment her husband died. It is acknowledged by all the parties herein that she is entitled as an iweto to inherit. Her place and right to what Marisela would have left her is recognized, and Marisela could only have left her what she was entitled to from her husband’s estate as a wife with an iweto wife.

In any event all parties are in agreement that she has been occupying part of the land since the days of Marisela and is entitled to inherit that portion. AKamba Customary law on married daughters with regard to inheritance

84. I have dealt with this issue but add that I relevance in re Estate of M’Ngarithi M’Miriti alias Paul M’Ngarithi M’Miriti (Deceased) [2017] KLR where the court expressed itself as follows: -

From the arguments coming through, it is clear issues to do with discrimination based on gender and sex have emerged. There were bad times in the heavily patriarchal African society; that being born as daughter disinherited you. And so, even the judicial journey to liberate daughters from being so down-trodden by the patriarchal society in Kenya on matters of inheritance has been long and painful. As a matter of fact, due to the constitutional architecture of our nation at the time, before 2010, we only saw pin-prick thrusts and rapier-like strokes by courts on these persistent patriarchal biases. But, things changed when RONO vs. RONO [2008] 1 KLR 803 delivered the downright bludgeon-blow on these discriminatory practices against women in inheritance; it splendidly paid deference to the international instruments against all forms of discrimination against women especially the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). And, I am happy to say that from thence, there are many cases- and the number is rising by the day as courts implement the Constitution- which state categorically that discrimination in inheritance on the basis of gender or sex or status is prohibited discrimination in law and the Constitution. More specifically I am content to cite the proclamation by the Court of Appeal in the case of STEPHEN GITONGA M’MURITHI vs. FAITH NGIRAMURITHI [2015] eKLR that: -

85. The Petitioner’s argument about her sister’s right to inheritance is untenable. It is not only unconstitutional but is inconsistent with the same law under which the she brought these succession proceedings. It cuts to the root of the right to equality before the law for all persons and is anathema to justice as clearly spelt out by Article 27 of the Constitution. Marital status is also a non-issue and cannot confer a higher or lesser right to a daughter with respect to inheritance.

86. Regarding the Petitioner’s deceased sister’s children, the petitioner went to section 41 of the LOSA to argue that they cannot inherit because their mother died in 1980 while the deceased died in 1977. The petitioner argued that as grandchildren, they can only step into their mothers’ shoes as direct beneficiaries of the deceased if their mother had pre-deceased their grandfather.

87. Section 41 of the Act provides that;

88. There is the direct stepping into the parents’ shows and what I would refer to as indirect one. The Judge in re Estate of Imoli Luhatse Paul (supra) made the clarification of the Njoki Wakagoto case by stating;

“2. I held in in re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR that a grandchild of the deceased was not entitled directly to the estate of their late grandfather in intestacy, so long as their own parents, being children of the deceased, were alive and were taking their rightful share. The argument was that such a grandchild would take indirectly through her own parents. I went on to state that a grandchild would be entitled to inherit directly from the intestate of their grandparent where his or her own parent, the child of the deceased, was dead, and, therefore, not available to take their share directly. In such case, the grandchild would be entitled to take directly by virtue of section 41 of the Law of Succession Act, Cap 160, Laws of Kenya.”

89. Evidently for grandchildren there are two modes of inheriting: There is the direct taking so to speak and the indirect mode. My understanding of the above interpretations is that a grandchild is a direct beneficiary of the deceased if his/her own parent (who is a child of the deceased) dies before the deceased. The converse is that grandchildren are indirect beneficiaries where their own parents are still alive hence expected that the share of their parents is what will trickle down to them.

90. The applicants herein cannot come under section 41 because their mother Brigit died after the deceased. But just because Brigit their mother did not claim her inheritance when she was alive, cannot be ground to declare that they are not beneficially entitled to their mother’s share or a share of their grand father’s estate. The whole question of direct and indirect inheritance by grandchildren has everything to do with situations where a grandchild is required to obtain a grant of representation for his/her parents’ estate. It does not mean that there are some instances where grandchildren are totally locked out of inheriting from their grandparents. This position is buttressed by Christine Wangari Gachege -vs- Elizabeth Wanjiru Evans & 11 Others [2014] eKLR, the Court of Appeal stated;

91. The Court of Appeal went on to say that;

92. It is evident from the foregoing that I do not agree with the respondent’s position.

93. As matters stand now the respondent is deceased, and the persons who are left to inherit are her children who are the grandchildren of the deceased. Does the respondent’s son stand at higher priority than the children of his aunt, his cousins? When you listen to him, the reason he says his cousins cannot inherit is the one advanced by his mother. He cannot stand on that reason because she is no longer here. The nature of succession proceedings is this, that every death in the family shifts the ground as the heirs and shares can change.

94.  What it means is that in the upshot it is my view that the applicants and the interested party are beneficially entitled to the estate of Mukusyo Mulwa.

95. What orders to issue?

96. The grant stands to be revoked on the clear facts

(a)that the proceedings to obtain the grant were defective in substance; the Petitioner did not get the consent of all those whose consent she was required to get

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; she did not get reveal the existed of others beneficially entitled to the estate

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; it was no true that she was the only beneficiary of the estate of the deceased

(d) The grant of letters of administration issued to the respondent herein on 25th November 2005 and confirmed on 8th September 2006 be and is  hereby revoked.

In the circumstances;

97. Each party to bear its own costs

Dated signed and delivered virtually on 28th June 2024

MUMBUA T. MATHEKA

JUDGE