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JudgmentIn the Estate of PHILLIP MBUVI MUTUA11 min read

In the Estate of PHILLIP MBUVI MUTUA

High Court at Makueni High Court · · Matheka, Teresia Mumbua


IN THE HIGH COURT OF KENYA AT MAKUENI

SUCC CAUSE NO.  225 OF 2017

IN THE MATTER OF THE ESTATE OF THE PHILIP MBUVI MUTUA (DECEASED)

PETER MUTHUSI MBUVI ……….…………………………. 1ST PETITIONER

FRANCIS KIMEU MBUVI …………………………….…... 2ND PETITIONER

-VERSUS-

PRISCILLA KAKII ………………………………..…………..1ST PROTESTER

MORRIS MUOKI MBUVI…………………………….………2ND PROTESTER

PHILIP MUSYOKI KILII ………………………………...… 3RD PROTESTER

RULING ON AFFIDAVIT OF PROTEST

  1. Before me are two protests by PHILIP MUSYOKI KILII (3rd protester) dated 29/08/2023) and that of PRISCILLA KAKII (1st protestor) of 7/9/2019.
  2. The background to these protests is this: Philip Mbuvi Mutua died on 25/10/1998.
  3. Grant of Letters of Administration were made on 13/10/2010 to Peter Muthusi Mbuvi and Francis Kimeu Mbuvi
  4. A certificate of confirmation of grant was issued on 28/9/2012 and given on 8/10/2012.
  5. A summons for revocation of grant dated 25/10/2013 was filed by Priscilla Kakii Mbuvi.
  6. By a ruling dated 18/3/2015 the court revoked the grant on the ground that the applicant, being a widow of the deceased, had not consented to the distribution of the estate. The court granted her 24 days to file affidavit of protest.
  7. The administrators filed chamber summons dated 22/9/2022 seeking review of the above ruling.
  8. By a ruling dated 4/5/2017 the application for review was dismissed.
  9. On 4/5/2017 the cause was transferred to Makueni.
  10. Thereafter the court was informed that there was a dispute in ELC No. 284 of 2017 – however advocates could not agree whether or not the dispute was related to this matter. Mr. Kisongoa pointed out that the parties(the intended protester)  had not complied with the orders of the court on the filing of the protest.
  11. On 9/5/2019 the court (Ong’udi J) directed parties to sort out the issues of the proposed protest, and that ELC matter.
  12. On 17/7/2019 – the record shows that counsel for the objectors told the court that the matter at the Environment and Land court was seeking to revoke titles of some of the properties from the deceased’s estate which had been fraudulently transferred to interested parties.
  13. Counsel sought time to allow the ELC matter to proceed. Mr. Kisongoa for the petitioners objected to the same insisting that parties needed to comply with the orders of Hon Mutende J. of 18/3/2015 to file their Affidavit of Protest. The objectors were given 30 days to file their objection in compliance with the orders of Mutende J – this was on 17/7/2019.
  14. Morris Muoki Mbuvi filed Affidavit of Protest on 8/8/2019 dated 7/9/2019. He filed it on behalf of and with the consent of Priscilla Kakii Mbuvi who he deponed was 88 years old then.
  15. The gist of the protest is that the deceased had three wives – and was survived by the 1st protestor and 12 children from the three houses.
  16. That the mode of distribution by the petitioners was unfair to the 3rd house; He deponed that the deceased was survived by the following, in the order set out.

First house

  1. Muthike FMbuvi (widow, deceased)
  2. Peter Mbuvi (son)
  3. Angelica Mbaika (daughter)

Second house

  1. Koki Mbuvi (wife – deceased
  2. Francis Kimeu Mbuvi (son)

Third house

  1. Priscillar Kakii Mbuvi (wife)
  2. Mule Mbuvi (son)
  3. Mutyazaa Mbuvi (son)
  4. Mutual Mbuvi (son)
  5. Mutuku Mbuvi (son)
  6. Musyoka Mbuvi (son)
  7. Muoki Mbuvi (son)
  8. Kivinya Mbuvi (daughter)
  9. Mumbua Mbuvi (daughter)
  10. Syowia Mbuvi (deceased)

That the deceased’s estate is comprised of the following properties:

  1. Kiteta/Ngiluni/499
  2. Kiteta/Kakuswi/371
  3. Kiteta/Kakuswii/508
  4. Kiteta/Ngiluni/508
  5. Kiteta/Ngiluni/517
  6. Kiteta/Ngiluni/275

Copies of certificates of official searches were annexed .

He depones further that  the deceased’s entire family is settled on land parcel No. KITETA/NGILUNI/275, and each of the beneficiaries of the deceased’s estate is settled on a clearly demarcated portion of the land, whereon he/she have their respective developments;That the deceased shared out his properties to his t here (3) houses before he died, and this position has severally been confirmed by the deceased’s clan after the deceased’s death; That the aforesaid distribution of the deceased’s estate ought to be followed by this honourable court in confirming the grant, and is as follows:-

  1. Kiteta/Ngiluni/499
  • Peter Muthusi Mbuvi - whole
  1. Kiteta/Kakuswi/371
  • Peter Muthusi Mbuvi – 1.25 hectares
  • Francis Kimeu Mbuvi – 1.09 hectares
  1. Kiteta/Ngiluni/517
  • Francis Kimeu Mbuvi/whole
  1. Kiteta/Ngiluni/275
  • To be shared equally between Priscillar Kakii Mbuvi, Peter Muthusi Mbuvi and Francis Kimeu Mbuvi.
  1. Kiteta/Ngiluni/508
  • Francis  Kimeu Mbuvi - whole
  1. Kiteta/Kakuswi/508
  • Priscillar Kakii Mbuvi - whole
  1. That the foregoing distribution has been in place for many years, and each party/house has developed their areas accordingly and he prays that the same be adopted by the honourable court.
  2. It is the proposal of the 1st protestor that the estate be distributed in accordance with the Law of Succession Act taking into account that the deceased was polygamous and died intestate – that the 1st house had 3 units, 2nd house 2 units, 3rd house had 10 units and the estate ought to be distributed accordingly.
  3. The protestor depones that:
  • That a total of 3.47 hectares of land is to be given to the 1st and 2nd petitioners while only 2.0 hectares is to be given to 3rd wife and leaving 0.46 hectares unaccounted for.
  • That in addition parcel of land KITETA/NGULUNI/275 is proposed to be divided equally between the petitioners and the 3rd wife which is not a fair proposition as:-
  1. The deceased’s entire family is settled on the said parcel and all the surviving beneficiaries are settled thereon with permanent developments existing thereon.
  2. The proposed “equal” distribution of the same will deprive the 3rd house off its rightful share of inheritance in the estate as it measures 7.0 ha. and equal distribution between petitioners and 3rd wife means each will get 2.3 acres.
  • That the proposed mode of distribution is irregular, unfair and unjust.
  • That the proposed mode of distribution only serves to deprive the 3rd house of its rightful inheritance and distort the peaceful co-existence, cause hatred, division, disunity and hostility amongst the surviving beneficiaries.
  • That it is only right, just and in the interest of justice that estate of the deceased be divided according to the number of units in each house.
  • That for parcel of and KITETA/NGULUNI/275 it is only fair that it be shared according to occupation and utilization as all surviving beneficiaries reside thereon on portions they have permanently developed.
  1. In response to the protest, the petitioners filed the affidavit of Ngei Kilonzo – the chairman of the Akanga clan, who attached minutes of the clan meeting of 16/03/2009.
  2. In his affidavit he deponed that the clan was called to distribute the estate and when the family sat they were informed that the properties of the deceased were acquired during the marriage of the 1st and 2nd wives, that Peter Mbuvi and the 2nd wife had contributed to the acquisition and presentation of the estate including the personal effects. That Akamba Customary Law was applied – distributing the properties among the three wives taking into account that the 3rd wife had not contributed to the acquisition of any of the parcels of land. That the 3rd house was represented by Mutua and Mutuku Kaloki and Morris Muoki.
  3. Another Affidavit of Protest was filed on 7/9/2023 by Philip Musyoki Kilii dated 29/8/2023 supported by the affidavit of Fredrick Mutuku Mvuvi on 29/8/2023.
  4. The gist of this protest is that on 23/9/1996 Fredrick Mutuku vide a sale agreement copy of which is annexed – purchased 2 acres of land from his father – the deceased herein, which land was to be excised from LR. Kiteta/Kakuswi/371. He said he bought it at Kshs.37,000/= which as indicated by the sale agreement, was paid in three installments between 23/9/1996 and 10/6/1997. That he took full possession of the property at that time without any protest from any  of his siblings and on 6/4/2002 he sold the same to Philip Musyoki Kilii who took possession of the land and has utilized  it since then.
  5. That in 2018 a person by the name Makenzi claiming to have purchased the land from the petitioners came and fenced the whole parcel including the 3rd protestor’s 2 acres claiming to have purchased the land from the petitioners.
  6. Fredrick Mutuku Mbuvi is opposed to the distribution of No. LR. Kiteta/Kakuswi/371 where the petitioners have allocated the land to themselves without taking into account 3rd protestor’s 2 acres of land.
  7. The 3rd protestor has annexed to his Affidavit of Protest the sale agreement between him and Fredrick Mutuku Mbuvi. It is his position that he is a creditor of the deceased’s estate having bought his land from a seller who bought the land directly from the owner. He is opposed to the summons of confirmation of grant dated 7/12/2012. He urges the court to find that he is a creditor of the deceased’s estate and uphold his right to acquire property under Article 40 (1) of the Constitution of Kenya (2010) and to find that the petitioner’s intentionally and maliciously and fraudulently failed to disclose that the estate of the deceased had a liability – his 2 acres of land out of Kiteta/Kakiswi/371.
  8. In response to the 3rd protestor’s protest, the 2nd petitioner swore an affidavit on 6/2/2024. He deponed that the deceased never consulted or involved them  when he allegedly sold the parcel of land to  their brother; that the land is ancestral land; that by 6/4/2002, the said Fredrick Mutuku  Mbuvi could not purport to sell the property as their father had already died, their brothers sale agreement with the 3rd protestor was void abinitio – that 3rd protestor’s claim for land was time barred and it was past the 12 years statutory time frame; that the 3rd protester was neither a beneficiary nor a creditor of the estate.
  9. The 3rd protester filed submissions. I did not see any for the 1st protester.
  10. The 3rd protester’s submissions reiterated the contents of both his and Fredrick Mbuvi Mutuku’s affidavits.
  11. I have carefully considered both protest and the issues for determination are:
  12. Whether the 3rd protester is a beneficiary or creditor of the estate of  the deceased,
  13. Whether the protest by the 1st protester is merited.
  14. With respect to the 3rd protesters protest – he claims to have bought two acres out of LR Kiteta/Kakuswi/371 from Fredrick Mutuku Mbuvi son of the deceased, who claims to have bought the same from his deceased father.
  15. What is clear is that the 3rd protester did not buy the land from the deceased – hence there is no direct connection between him and the deceased – and his claim is based on a sale agreement with a beneficiary of the estate and not the owner of the property. A creditor of the estate or liability of the estate to have been directly incurred by the deceased during the life time.
  16. I have looked at the purported sale agreement between the son of the deceased and the deceased – it is dated 23/9/1996. It is headed “PLO No. 371”. – “The parcel of land I have sold is Ndithini”. It goes on to state that the seller (the deceased) has agreed with his children – however on the face of it, the said children are not named (listed) neither have they witnessed or signed the purported sale agreement hence at the outset the agreement of sale is not supported by its own contents.
  17. That besides the sale is alleged to have happened in 1996 – and the buyer sold the property to the 3rd protester in 2002 – by then the deceased had died but the proprietary interest had not passed to the said Fredrick – to enable him to pass it to the 3rd protester – while it is not the place of this court to determine ownership – the parties have presented this evidence to establish a claim on the estate of the deceased. It is evident that by the time of his demise the deceased had not transferred  the property to the son to enable him transfer it to the 3rd protester. Hence if indeed the 3rd protester has any claim, then that claim is not against the estate of the deceased but it is between him and the said Fredrick Mutuku Mbuvi. Claim does not amount to a liability upon the estate of the deceased. Hence his protest is unmerited.
  18. With regard to the 1st protester’s protest – the issue here is the dispute as to how much of the estate should go to the 3rd house. According to the 1st protester – the estate should be shared in accordance with section 40 of the Law of Succession Act – in accordance with the units in each house as far as the petitioners are concerned – the 3rd widow came to the scene when the 1st and 2nd wives had already acquired the property with their husband. They also claim to have contributed to the acquisition of the estate – long before the arrival of the 1st protester.
  19. The position of the petitioners is that the 1st protester was given what she is entitled to and that was done in a clan meeting where the 3rd family was involved.
  20. There is no evidence to support the claim by the petitioners that they contributed to acquisition of their father’s estate – neither is there any evidence placed before court that the 1st two wives contributed to the acquisition of the estate. Of course it cannot be ruled out that wives contribute in their own way to the acquisition of family property – the claim must be proved by way of evidence. In addition the petitioners are not in this matter as the legal representatives of mother’s estate – hence it would be difficult for them to speak on behalf of their mothers.
  21. This court ( Hon Mutende J) found that the 1st protester had not consented to the confirmation of the grant because the parties never got the opportunity to discuss the distribution. There is no dispute that the 1st protester is entitled to a share of the estate. The only issue is the portion of the share
  22. To that end I find that the that the 1st protester’s  protest as filed is merited. The same is allowed.
  23. The issue at hand is the distribution of the estate. It is my considered view that the same can be expedited and settled amicably once and for all through a family sit down. I think mediation would serve the purpose well. On this I am guided by the provisions of Article 159(2) ( c)of the Constitution.
  24. I direct that parties attend mediation to discuss the  mode of distribution of the estate, and if they cannot agree, then to discuss with the mediator their proposals on the mode of distribution of the estate.
  25. To this end they will appear before the DR within 7 days hereof for assignment of a mediator, and will have 60 days to complete the mediation.
  26. Each party to bear its own costs.

Dated, signed and delivered virtually this 20th day of September 2024

Mumbua T Matheka

Judge

Ms  Nelima/Ms Elizabeth

Parties

Counsel: Mrs Nzau for the 3rd Protester

N/A for other parties and Counsel

    In the Estate of PHILLIP MBUVI MUTUA In the Estate of PHILLIP MBUVI MUTUA