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JudgmentIn the Estate of MWANGI14 min read

In the Estate of MWANGI

High Court at Eldoret High Court · · R. Nyakundi -J

REPUBLIC OF KENYA

IN THE HIGH COURT AT ELDORET

SUCCESSION CAUSE NO. E077 OF 2022

IN THE MATTER OF THE ESTATE OF DORCAS NJOKI MWANGI (DECEASED)

DANIEL G. KARANJA GAKIO

SAMUEL MWANIKI GAKIO

FAITH TABITHA NYANJORA GAKIO ……………………………. APPLICANTS

VERSUS

NELSON MWANIKI GAKIO

& NAOMI WANJIRU GAKIO ……………. ADMINISTRATORS/RESPONDENT

Coram: Before Justice R. Nyakundi

  M/s Stanley Henry & Co. Advocates

  M/s Mukabane Kagunza Advocates LLP

RULING

  1. Before me for determination are summons dated 30th July, 2024 expressed to be brought under the provisions of Section 26 of the Act and Rule 45(1) of the Probate and Administration Rules after the grant has been applied has been applied for but not confirmed. The applicant seeks orders as follows:
    1. Spent
    2. Pending interparties hearing and/or determination of this application, the confirmation proceedings and/or any further proceedings be stayed/suspended.
    3. Pending interparties hearing and determination of the present application, this honourable court be pleased to order that the estate preserved and all the rent income to be derived from the developments on Land Titles No. Eldoret Municipality/Block 13/278 and Eldoret Municipality/Block 13/284 and Eldoret Municipality/Block 15(Huruma)/33 be deposited either in court or in a joint account in the names of the applicants and the respondents.
    4. Such reasonable provision be now made for the applicants
  2. The summons are supported by an affidavit sworn by Samuel Mwaniki Gakio in the capacity of a step son to the deceased. He deposed as hereunder:
    1. That I am step son to the deceased and duly authorised by my co-applicants, who are my siblings, to swear this affidavit on their behalf and, therefore, swear this affidavit both on their behalf as well as on my own behalf.
    2. That my mother, Grace Wairimu Gakio, was married to my father, Evanson Gakio Mwaniki, in 1964 and which marriage was formalised into a Christian (native) marriage in September, 1974, and which marriage was not dissolved throughout my father’s life up to the time of his demise in 2012.
    3. That from the time of our birth, I and my siblings, were brought up at our father’s family home erected on a five (5) acre property located at Huruma area, Eldoret comprising Eldoret Municipality/Block 13/29. This is still the home we consider to be the family to the family home to date.
    4. That after our mother separated with our father in 1984, he thereafter started to live with the deceased herein, Dorcas Njoki Mwangi, without any formalities. Nonetheless, we continued to reside at the family home together with her and our father.
    5. That after separating with my mother, my father sub-divided the mother title, sold a bigger part (about 3.7 acres) and used the proceeds to develop the remaining portions title numbers Eldoret Municipality/Block 13/278, Eldoret Municipality/Block 13/277, Eldoret, Eldoret Municipality/Block 13/284 all measuring a total of 1.26 acres and also acquired Eldoret Municipality Block 15 (Huruma)/33 whereon he erected a commercial property.
    6. That after the demise of the family patriarch, Evanson Gakio Mwaniki, in 20211 up to until 2023 (even after demise of the deceased herein in 2019), the management of the properties and collection of rental income has been undertaken jointly between the two houses, with the net proceeds being deposited in a joint bank account in the names of the five children of the deceased (ourselves and the respondents), and for the benefit of all the Respondents, my co-applicants and I, my other and the Respondents’ mother/deceased herein up to her demise in 2019,  all as equal stakeholders, and as members of the two houses of our deceased father.
    7. That it was only in June, 2023, after the respondents had directed all tenants in commercial/rental properties forming part of our father’s estate to pay all the rental income proceeds approximating Kshs. 400,000/= per month (Kshs. 250,000/= from Eldoret Municipality/Block 13/284 and Eldoret Municipality/Block 15 (Huruma)/33 and Kshs. 150,000/= from Eldoret Municipality/Block 13/278 to their separate bank account, that we carried out an investigation which revealed that the properties had been registered jointly in the name of the deceased herein and our father way back in 1994 and 2005 for the Huruma property respectively. It is these said properties that we have been dependent upon, and for which even the deceased herein did not represent herself as having any interested greater than any of us and did not assert any right as an owner. Indeed, the 2nd Respondent had been paying rent for her occupation of one of the units and which rent was even being collected by her mother (the deceased herein) and banked into the joint account operated by ourselves and the Respondents. It was for this reason that upon demise of the deceased herein we agreed that she could move into and occupy part of the family house.
    8. That further with respect to income tax matters, the 2nd Respondent would send me rental records so that I could prepare KRA returns for rent for some of the properties under my name while the 1st Respondent prepared returns for the other properties under his name since we had not sorted out matters relating to our father’s estate.
    9. That the affidavit sworn in support of the said summons for grant of letters of administration filed by the Respondents failed to list the applicants/ourselves herein as step-children/dependants of the estate of the deceased.
    10. That the summons for grant of representation herein were not made with our knowledge but was revealed to us by the Respondents when we protested their decision to divert the rental income monies to their own bank accounts.
    11. That I believe the grant has not been confirmed to date.
    12. That as a necessary sequel, it is imperative that confirmation of grant proceedings be stayed pending the hearing and determination of the present application.
    13. That meanwhile it is imperative that interim orders do issue for preservation of not only the income but also the properties comprised in the estate before hearing and determination of the present application and the proceeds from rent income be deposited either in court or in a joint account in the names of the applicants and the Respondents.
    14. That having been dependant on the properties forming part of our late father’s estate throughout our lives, right from childhood, and which properties we have now discovered the deceased herein had been introduced as a joint owner thereto in 1994 and 2005 respectively for the Huruma property and which the deceased continued to treat herself as an equal owner to ourselves, a cue and position taken over by the Respondent herein until last year even after filing the present proceedings in 2022, it is only just that this honourable court do proceed to make such sufficient provisions for us as it deems fit. 
  3. In response to the application, the Administrators filed a replying affidavit sworn by Naomi Wanjiru Gakio on 20th September, 2024 in which she deposed verbatim that:
    1. The 2nd administrator and I are the only children of the deceased thus the lawful heirs to the estate of the deceased in accordance with section 66 of the Law of Succession Act this the applicants are strangers to the estate of the deceased hereto and lacks locus standi in the first place to lay any claim to properties belonging to our mother and/or seek for orders sought vide the instant application.
    2. That the instant application amounts to gross abuse of this honourable court’s due process.
    3. That the instant application is bad in law, incurably defective given that properties namely: ELDORET MUNICIPALITY/BLOCK 13/277, MUNICIPALITY/BLOCK 13/278 MUNICIPALITY BLOCK 13/284 and ELDORET MUNICIPALITY/BLOCK 15 (HURUMA) 33 belong to the deceased hereto due to the principle of survivorship.
    4. The properties namely ELDORET MUNICIPALITY/BLOCK 13/277, MUNICIPALITY/BLOCK 13/278 MUNICIPALITY BLOCK 13/284 and ELDORET MUNICIPALITY/BLOCK 15 (HURUMA) 33 were acquired and owned jointly by the late Evanson Gakio and our mother Dorcas Njoki Mwangi – also deceased.
    5. That our late father was a joint tenant with our late mother Dorcas Njoki MWangi of the said properties hence the deceased interests automatically passed to Dorcas Njoki Mwangi being the surviving joint tenant upon the demise of our father by virtue of principle of survivorship given that our father and Dorcas Njoki Mwangi had undivided interests in the aforesaid parcels.
    6. That the intention of the principle of survivorship and/or jus accrescendi is to remove jointly owned property from the operation of the law of succession upon death of the joint tenants.
    7. That the honourable court jurisdiction is limited to only dealing with properties already ascertained for distribution among the lawful beneficiaries.
    8. That the instant application hereto is a mischievous one aimed at misleading the honourable court to usurp its powers to grant the orders sought.
    9. That the late Evanson Gakio has no properties available for distribution in view of the principle of jus accrescendi.
  4. From the pleadings and submissions, the following issues arise for determination:
    1. Whether the principle of survivorship (jus accrescendi) absolutely bars the applicants' claims.
    2. Whether the applicants qualify as dependants under Section 29 of the Law of Succession Act
    3. Whether the court should exercise its discretion under Section 26 to make reasonable provision for the applicants
    4. Whether the conduct of parties has created an equitable interest requiring protection

Analysis and Determination

  1. The matter before me presents a poignant reminder that family relationships often transcend the rigid boundaries of legal principles. I am tasked with determining how to fairly address the claims of two groups of siblings who, despite their different mothers, shared not only a father but also a common home and livelihood for decades.
  2. The story begins in 1964, when Grace Wairimu Gakio married Evanson Gakio Mwaniki in a union later formalized as a Christian marriage in 1974. From this marriage came the applicants; Daniel, Samuel, and Faith Tabitha. These children grew up in their father's five-acre property in Huruma area, Eldoret, which would later become central to this dispute. Life took an unexpected turn in 1984 when their parents separated, and their father began living with Dorcas Njoki Mwangi, the deceased in this matter.
  3. What strikes me as remarkable is that despite this change in family dynamics, the applicants continued to reside in the family home alongside their father and his new partner. Even more telling is what transpired after their father subdivided and sold most of the original property. The proceeds were used to develop what are now Eldoret Municipality/Block 13/278, 13/284, and Block 15(Huruma)/33. These properties, though registered jointly between their father and Dorcas Njoki Mwangi in 1994 and 2005, became the foundation of a shared family enterprise.
  4. The evidence reveals a family that, despite its complicated beginnings, found a way to function as a unified whole. Following Evanson Gakio's death in 2012, both families continued to manage these properties jointly. The rental income, approximately Kshs. 400,000 monthly, was shared equally among all siblings. Even more telling is that Naomi Wanjiru Gakio, one of the respondents, paid rent for occupying one of the units, with her own mother (the deceased) collecting this rent for the benefit of all.
  5. At the heart of this dispute are three properties: Eldoret Municipality/Block 13/278, Eldoret Municipality/Block 13/284, and Eldoret Municipality/Block 15(Huruma)/33. These properties, according to the evidence before court, were registered jointly in the names of the deceased and Evanson Gakio Mwaniki in 1994 and 2005 respectively.
  6. The applicants, through their affidavit sworn by Samuel Mwaniki Gakio, present compelling evidence of their historical connection to and dependence on these properties. They were raised in the family home situated on these properties, and after their father's death in 2012, participated in the joint management of the properties alongside the deceased and the respondents until 2023. The properties generated approximately Kshs. 400,000 per month in rental income, which was shared equally among all parties. Significantly, even the second respondent previously paid rent for occupying one of the units, and the deceased never asserted exclusive ownership rights during her lifetime.
  7. Furthermore, the evidence suggests that these properties were developed using proceeds from the sale of their father's original 5-acre property. This creates a direct link between the disputed properties and the family's original patrimony.
  8. The respondents, through their replying affidavit sworn by Naomi Wanjiru Gakio, present a contrasting position. They assert their status as the only lawful heirs to the deceased's estate and argue that the properties belong exclusively to the deceased by virtue of survivorship. They contend that the applicants lack locus standi to claim against the estate, emphasizing the joint ownership between the deceased and Evanson Gakio Mwaniki.
  9. The central legal issue before this court is whether the principle of survivorship (jus accrescendi) should operate to absolutely bar the applicants' claims. While this principle is well-established in property law, operating to pass a deceased joint tenant's interest automatically to surviving joint tenants, it cannot be applied in isolation from other relevant legal principles and circumstances.
  10. The court must consider this principle in light of several important factors. First, the Constitutional provisions on equality and non-discrimination, as enshrined in Article 27. Second, the protective provisions for dependants under the Law of Succession Act. Third, the equitable principles of constructive trust and legitimate expectation that may arise from the conduct of parties.
  11. The evidence reveals a pattern of conduct that suggests all parties, including the deceased, treated these properties as family assets rather than exclusive property. The sharing of rental income equally among all children until 2023 and the joint management of the properties create a strong inference of accepted family rights in the property, transcending strict legal title.
  12. On the question of dependency, Section 29 of the Law of Succession Act defines dependants to include children of the deceased, whether or not maintained by the deceased immediately preceding death. Proof of dependency is thus a condition precedent to the exercise of the discretion in section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba .v. Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No. 12 of 2016 :-     

“From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise.  It is not the mere relationship that matters, but proof of dependency."

  1. While the applicants are step-children of the deceased, they have attempted to demonstrate historical dependence on these properties and active participation in their management.
  2. Section 26 of the Act empowers this court to make reasonable provision for dependents where the court finds that the disposition of the deceased's estate is not such as to make reasonable provision for the dependent. Section 26 governs Provisions for dependants not adequately provided for by will or on intestacy. It states that:

“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.”

  1. In exercising this power, the court must consider the nature and extent of the deceased's obligations to the dependent, the size and nature of the estate, the financial resources and needs of the dependent, and the deceased's conduct towards the dependent.
  2. Section 27 of the same Act provides that “In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependants, or to make such other provision for him by way of periodical payment or a lump sum, and to impose such conditions as it thinks fit.
  3. On stay of proceedings, it is trite law that whether or not to issue an order for stay of proceedings is a matter of the court’s discretion exercised after due consideration of the merits of the case and the likely effect on the ends of justice.  The exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by Ringera J in Global Tours & Travels Limited, Nairobi HC Winding Up Cause No. 43 of 2000: -

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice ……the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

  1. Similarly, the threshold for stay of proceedings has been illuminated in the passages in Halsbury’s Law of England, 4th Edition, Vol. 37 page 330 and 332 that: -

“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”

  1. Based on the evidence and legal principles before me, I find that while survivorship operated to vest legal title in the deceased, this does not extinguish equitable interests that may have arisen through the conduct of parties and the source of funds used to develop the properties. The applicants have established a prima facie case of dependency, and the interests of justice require preservation of the estate pending full hearing.
  2. Therefore, I make the following orders:
    1. The confirmation proceedings shall be stayed pending the full hearing of this matter.
    2. All rental income from the subject properties shall be deposited in a joint account to be opened in the names of counsel for both the applicants and respondents within 14 days of this ruling.
    3. In the interim, the appointed administrators shall oversee the preservation of the estate assets, with responsibility for collecting and accounting for all rental income, maintaining proper books of account, and filing quarterly reports with the court.
    4. Costs shall be in the cause.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 15TH DAY OF NOVEMBER 2024

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Kagunza, Advocate

    In the Estate of MWANGI In the Estate of MWANGI