1. The deceased herein died on the 14th of September 2008. He was survived by two widows and thirteen children, namely Regina Chao Mwarigha, Frida Mshai, Videlis Mnjala Mwarigha, Edward Lenjo Mwarigha, Joseph Mwanyumba Mwarigha, Rose Samba Mwarigha, Jonam Mrangulo Mwarigha, Caroline Mghambi Mwarigha, Julian Wanjala Mwarigha, Octavian Nyange Mwarigha and Martin Mwambanga Mwarigha.The deceased also left behind several properties, namely:-
1. Plot at Maungu measuring 12 Acres (Unsurveyed);
2. Plot at Maungu measuring 3 Acres (Unsurveyed);
3. House at Chaani on Plot No.12/18;
4. House at Chaani on Plot No.12/23;
5. Plot at Maungu Shopping Centre;
6. Msorongo Farm measuring 3 acres;
7. 2 tractors, one with registration number KAL 608 R;
8. Bank balances in accounts held at Barclays/Absa Bank and Standard Chartered Bank amounting to Kes.23,000/-; and
9. Shares at Sagana and Sasenyi ranches.
2. The petitioner petitioned the court for grant of letters of administration. A grant of letters of administration intestate was issued on 5th February 2021. The Petitioner then filed a summons for confirmation of the grant on 12th July 2022, resulting in the filing of an affidavit of protest dated 7th June 2023. The petitioner filed a further affidavit dated 18th April 2023 in response to the affidavit of protest.
3. The court directed that the matter proceed by way of viva voce evidence.
4. The first witness for the Protestor was Edward Lenjo Mwarigha. Mr Edward Mwarigha testified that the deceased had two wives, namely Regina Chao Mwarigha, who had six children, of whom 3, Mwarigha Moka Mwarigha, Crispus Mwarigha and Margaret Mwarigha were dead, leaving behind their children who are the heirs of their estate and the second wife, Frida Mshai Mwarigha. He testified that the three siblings who were not included in the petition should thus be included.
5. It was his evidence they all agreed on the distribution of the estate and that each wife had their own residence, Regina’s in Msorongo and Frida's in Maungu. The deceased had two tractors with each house getting one. It was his further evidence that the house on Plot No 12/18 was in the name of the deceased, who lived there with his mother (Edward’s mother), before marrying Frida. The house used to be managed by an agent; however, he took over after the demise of the deceased.
6. He stated that four of them were given plots in Maungu and that Plot No Chaani 12/23 belongs to Videlis as it is in his name. He testified that his mother had sold Plot No Chaani 12/18.
7. He told the court that the 2nd house has land in Maungu and plots and that the 3 acres are in the name of Mwarigha Nyange. He testified that the deceased had shares in two ranches, Sagalla Ranch and Sasenyi Ranch.
8. The second witness for the Protestors was Videlis Mnjala Mwarigha. He testified that he resides at Plot No Chaani 12/23, which he bought on 28th September 1982 from the municipality through a loan and developed the same. It was his evidence that Plot No Chaani 12/23 does not form part of the estate of the deceased.
9. The first witness for the Petitioner was Octavian Mwarigha. He testified that Plot Nos Chaani 12/18 and 12/23 were left out and that the other assets were distributed, and the only properties remaining for distribution are the money in the 2 bank accounts bank and shares in Sagalla and Sasenyi Ranches. It was his evidence that the two plots at Chaani belonged to the deceased. He testified that he and his siblings were brought up on Plot No Chaani 12/23. They were not included in the sale of 12/18.
10. The second witness for the Petitioner/Respondent was Calist Nyange Moka. Mr Calist Moka testified that Chaani 12/18 was given to Frida while 12/23 was given to Regina during the two family meetings. That 12/18 was developed by the deceased and Frida.
11. The court directed the parties to file their written submissions.
12. The submissions of the Protestors are dated 29th November 2023. Their counsel, Edward Gichana, submitted that Plot No 12/23 was purchased by Edward Lenjo Mwarigha and that he developed it by building the house, which is still standing to date.
13. Counsel submitted that Plot No. 12/18 was the home of the deceased and his first wife. The same was acquired before Ms Frida Mshai Mwarigha was married.
14. Counsel submitted that no evidence was tendered to prove that a division of the properties of the deceased had been agreed before the Chief at Chaani Mombasa and at Maungu in Taita Taveta. Mr Gichana submitted that since the minutes of the alleged meeting were not produced, the Court should draw an adverse inference that no such minutes existed. In support of the said contention he relied on the decision of the court in Kimotho vs KCB [2003]EA 108.
15. Counsel submitted that there were numerous instances of intermeddling of the estate. He decried the fact that the properties of the deceased were shared without due process.
16. The Petitioner through his advocates M K Mulei & Company Advocates, filed written submissions dated 1st December 2023. Counsel submitted on two issues, namely, who the beneficiaries of the deceased are and what properties are available for distribution.
17. On the 1st issue counsel submitted that the children listed in the summons for confirmation of grant be considered as the beneficiaries of the deceased and heirs of the estate on account that the two widows died during the pendency of the petition. Counsel urged the court to include the deceased siblings of the parties, namely Chrispus Mwarigha, Margaret Mwarigha and Moka Nyange.
18. On the 2nd issue, counsel submitted that most of the properties had been distributed during the lifetime of the deceased and after his demise through the chiefs of Chaani and Maungu. The said properties include the land that holds the homestead for the two wives, plot at Maungu 12 acres unsurveyed, plot at Maungu 3 acres Unsurveyed, house at Chaani on plot No.12/18, house at Chaani on Plot No.12/23, Plot at Maungu Shopping Centre, Msorongo Farm 3 acres, two tractors registration, monies in bank accounts at Barclays and Standard Chartered and shares at Sagana And Sasenyi Cooperative Society Limited.
19. Counsel further submitted that at the inception of the petition, the assets that were available for distribution were monies in Barclays and Standard Chartered Bank Account, Shares at Sagana And Sasenyi Ranches, house at Chaani on Plot No.12/18 and house at Chaani on Plot No.12/23.
20. Counsel submitted that the applicable law applicable on distribution of the estate of a deceased person who was polygamous is Section 40 of the Law of Succession Act and proposed that the remaining properties be distributed as follows; monies in Barclays and standard chartered bank be shared equally amongst all the beneficiaries, shares at Sagana and Sasenyi Cooperative Society Limited be granted to the petitioner and his siblings as conceded to by the protestors who have in any event benefitted more from the deceased estate with reference to the rental proceeds from the two houses in Chaani exclusively since the death of the deceased.
21. On Plot No. 12/18, Chaani site and service scheme counsel submitted that the same should be distributed equally to all beneficiaries as it is not a matrimonial property as alleged by the protestors as the two widows occupied the same during the lifetime of the deceased; thus none should have a superior right of interest than the other. The allegation that the protestor's mother sold the same before her death is a lie meant to defeat justice, and if there were such a sale, the same would be null and void and amount to intermeddling with the estate of the deceased, and thus, the same must fail.
22. On Plot No. 12/23 Chaani Site & Settlement Scheme, counsel submitted that the protestors took over the possession and management of the two houses after the death of the deceased. In contrast, the same was acquired and developed by the deceased, who was collecting the rental income during his lifetime.
23. The Protestors have made serious allegations of intermeddling with the estate of the deceased by some beneficiaries and third parties. This Court is unable to take any action as the said allegation was raised in the submissions.
24. The law governing the disposition of the estate of a deceased polygamous man is stated in section 40 of the Law of Succession Act which provides that:-
“Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
Section 40 (2):-
“The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
25. The court of appeal in the case of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) stated,
In Mary Rono vs Jane Rono & another (supra), Waki JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis. In the same judgment, Omollo JA stated the position more clearly as follows:
“My understanding of that section is that while the net intestate estate is to be distributed according to houses each house being treated as a unit, yet the judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that they must be equality between houses they would have been no need to provide in the section that the number of children in each house be taken into account.
Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work injustice particularly in the case of a young child who is still to be maintained, educated and generally seen through life. If such a child whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equality.”
.. It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.
26. I have perused the Summons filed in Court, the affidavits of protest as well as the submissions of the parties.
27. It would appear to me that a great part of the estate is no longer available due to inter vivos transmission by the deceased. What this Court is concerned with is the net estate available for distribution. In my view the assets remaining for distribution are bank balances in accounts the deceased had in Absa Bank and Standard Chartered Bank and shares in Sagana and Sasenyi Cooperative. I direct the above be shared equally by the beneficiaries in accordance with Section 40 of the Law of Succession Act as the deceased.
28. Plot No.12/18 Chaani was improved by Frida Mshai. I order that it be registered in her name and her children. Although the first wife of the deceased lived there with him initially, she abandoned it upon separation. This court prefers a course of action that will create the least disruption.
29. There was contestation as to who bought Plot No.12/23 and whether it still belonged to the estate. I have seen the demand notes from the County/Municipal Council. I am satisfied that the same belonged to the deceased. Since the second house has Plot No.12/18 Chaani, it will only be fair and just that the first house gets this Plot. In the circumstances, Plot No.12/23 shall, therefore, go to the house of Regina Chao Mwarigha.
30. The upshot of the foregoing is that the protest is dismissed for not having merit. The Summons for Confirmation of Grant date 22nd March 2022 is hereby allowed as prayed. The grant issued on 5th February 2021 is confirmed. The estate shall be distributed as per the schedule of distribution dated 22nd March 2022.
31. As this is a family matter, the parties will bear their own costs.
32. Orders accordingly.
Dated and signed at Mombasa this 16th day of August 2024. Delivered virtually through Microsoft TEAMS
1. Plot at Maungu measuring 12 Acres (Unsurveyed);
2. Plot at Maungu measuring 3 Acres (Unsurveyed);
3. House at Chaani on Plot No.12/18;
4. House at Chaani on Plot No.12/23;
5. Plot at Maungu Shopping Centre;
6. Msorongo Farm measuring 3 acres;
7. 2 tractors, one with registration number KAL 608 R;
8. Bank balances in accounts held at Barclays/Absa Bank and Standard Chartered Bank amounting to Kes.23,000/-; and
9. Shares at Sagana and Sasenyi ranches.
2. The petitioner petitioned the court for grant of letters of administration. A grant of letters of administration intestate was issued on 5th February 2021. The Petitioner then filed a summons for confirmation of the grant on 12th July 2022, resulting in the filing of an affidavit of protest dated 7th June 2023. The petitioner filed a further affidavit dated 18th April 2023 in response to the affidavit of protest.
3. The court directed that the matter proceed by way of viva voce evidence.
4. The first witness for the Protestor was Edward Lenjo Mwarigha. Mr Edward Mwarigha testified that the deceased had two wives, namely Regina Chao Mwarigha, who had six children, of whom 3, Mwarigha Moka Mwarigha, Crispus Mwarigha and Margaret Mwarigha were dead, leaving behind their children who are the heirs of their estate and the second wife, Frida Mshai Mwarigha. He testified that the three siblings who were not included in the petition should thus be included.
5. It was his evidence they all agreed on the distribution of the estate and that each wife had their own residence, Regina’s in Msorongo and Frida's in Maungu. The deceased had two tractors with each house getting one. It was his further evidence that the house on Plot No 12/18 was in the name of the deceased, who lived there with his mother (Edward’s mother), before marrying Frida. The house used to be managed by an agent; however, he took over after the demise of the deceased.
6. He stated that four of them were given plots in Maungu and that Plot No Chaani 12/23 belongs to Videlis as it is in his name. He testified that his mother had sold Plot No Chaani 12/18.
7. He told the court that the 2nd house has land in Maungu and plots and that the 3 acres are in the name of Mwarigha Nyange. He testified that the deceased had shares in two ranches, Sagalla Ranch and Sasenyi Ranch.
8. The second witness for the Protestors was Videlis Mnjala Mwarigha. He testified that he resides at Plot No Chaani 12/23, which he bought on 28th September 1982 from the municipality through a loan and developed the same. It was his evidence that Plot No Chaani 12/23 does not form part of the estate of the deceased.
9. The first witness for the Petitioner was Octavian Mwarigha. He testified that Plot Nos Chaani 12/18 and 12/23 were left out and that the other assets were distributed, and the only properties remaining for distribution are the money in the 2 bank accounts bank and shares in Sagalla and Sasenyi Ranches. It was his evidence that the two plots at Chaani belonged to the deceased. He testified that he and his siblings were brought up on Plot No Chaani 12/23. They were not included in the sale of 12/18.
10. The second witness for the Petitioner/Respondent was Calist Nyange Moka. Mr Calist Moka testified that Chaani 12/18 was given to Frida while 12/23 was given to Regina during the two family meetings. That 12/18 was developed by the deceased and Frida.
11. The court directed the parties to file their written submissions.
12. The submissions of the Protestors are dated 29th November 2023. Their counsel, Edward Gichana, submitted that Plot No 12/23 was purchased by Edward Lenjo Mwarigha and that he developed it by building the house, which is still standing to date.
13. Counsel submitted that Plot No. 12/18 was the home of the deceased and his first wife. The same was acquired before Ms Frida Mshai Mwarigha was married.
14. Counsel submitted that no evidence was tendered to prove that a division of the properties of the deceased had been agreed before the Chief at Chaani Mombasa and at Maungu in Taita Taveta. Mr Gichana submitted that since the minutes of the alleged meeting were not produced, the Court should draw an adverse inference that no such minutes existed. In support of the said contention he relied on the decision of the court in Kimotho vs KCB [2003]EA 108.
15. Counsel submitted that there were numerous instances of intermeddling of the estate. He decried the fact that the properties of the deceased were shared without due process.
16. The Petitioner through his advocates M K Mulei & Company Advocates, filed written submissions dated 1st December 2023. Counsel submitted on two issues, namely, who the beneficiaries of the deceased are and what properties are available for distribution.
17. On the 1st issue counsel submitted that the children listed in the summons for confirmation of grant be considered as the beneficiaries of the deceased and heirs of the estate on account that the two widows died during the pendency of the petition. Counsel urged the court to include the deceased siblings of the parties, namely Chrispus Mwarigha, Margaret Mwarigha and Moka Nyange.
18. On the 2nd issue, counsel submitted that most of the properties had been distributed during the lifetime of the deceased and after his demise through the chiefs of Chaani and Maungu. The said properties include the land that holds the homestead for the two wives, plot at Maungu 12 acres unsurveyed, plot at Maungu 3 acres Unsurveyed, house at Chaani on plot No.12/18, house at Chaani on Plot No.12/23, Plot at Maungu Shopping Centre, Msorongo Farm 3 acres, two tractors registration, monies in bank accounts at Barclays and Standard Chartered and shares at Sagana And Sasenyi Cooperative Society Limited.
19. Counsel further submitted that at the inception of the petition, the assets that were available for distribution were monies in Barclays and Standard Chartered Bank Account, Shares at Sagana And Sasenyi Ranches, house at Chaani on Plot No.12/18 and house at Chaani on Plot No.12/23.
20. Counsel submitted that the applicable law applicable on distribution of the estate of a deceased person who was polygamous is Section 40 of the Law of Succession Act and proposed that the remaining properties be distributed as follows; monies in Barclays and standard chartered bank be shared equally amongst all the beneficiaries, shares at Sagana and Sasenyi Cooperative Society Limited be granted to the petitioner and his siblings as conceded to by the protestors who have in any event benefitted more from the deceased estate with reference to the rental proceeds from the two houses in Chaani exclusively since the death of the deceased.
21. On Plot No. 12/18, Chaani site and service scheme counsel submitted that the same should be distributed equally to all beneficiaries as it is not a matrimonial property as alleged by the protestors as the two widows occupied the same during the lifetime of the deceased; thus none should have a superior right of interest than the other. The allegation that the protestor's mother sold the same before her death is a lie meant to defeat justice, and if there were such a sale, the same would be null and void and amount to intermeddling with the estate of the deceased, and thus, the same must fail.
22. On Plot No. 12/23 Chaani Site & Settlement Scheme, counsel submitted that the protestors took over the possession and management of the two houses after the death of the deceased. In contrast, the same was acquired and developed by the deceased, who was collecting the rental income during his lifetime.
23. The Protestors have made serious allegations of intermeddling with the estate of the deceased by some beneficiaries and third parties. This Court is unable to take any action as the said allegation was raised in the submissions.
24. The law governing the disposition of the estate of a deceased polygamous man is stated in section 40 of the Law of Succession Act which provides that:-
“Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”
Section 40 (2):-
“The distribution of the personal and household effects and the residue of the net intestate within each house shall then be in accordance with the rules set out in sections 35 to 38.”
25. The court of appeal in the case of Scolastica Ndululu Suva v Agnes Nthenya Suva [2019] KECA 1053 (KLR) stated,
In Mary Rono vs Jane Rono & another (supra), Waki JA in the leading judgment, accepted the proposition that the Court had the discretion in ensuring a fair distribution of the deceased’s estate but that the discretion must be exercised judicially on sound legal and factual basis. In the same judgment, Omollo JA stated the position more clearly as follows:
“My understanding of that section is that while the net intestate estate is to be distributed according to houses each house being treated as a unit, yet the judge doing the distribution still has a discretion to take into account or consider the number of children in each house. If Parliament had intended that they must be equality between houses they would have been no need to provide in the section that the number of children in each house be taken into account.
Nor do I see any provision in the Act that each child must receive the same or equal portion. That would clearly work injustice particularly in the case of a young child who is still to be maintained, educated and generally seen through life. If such a child whether a girl or a boy, were to get an equal inheritance with another who is already working and for whom no school fees and things like that were to be provided, such equality would work an injustice and for my part, I am satisfied that the Act does not provide for that kind of equality.”
.. It is therefore evident, that, although section 40 of the Law of Succession Act provides a general provision for the distribution of the estate of a polygamous deceased person, the court has discretion to take into account factual circumstances of the particular case that may be relevant in ensuring equitable and fair distribution of the estate.
26. I have perused the Summons filed in Court, the affidavits of protest as well as the submissions of the parties.
27. It would appear to me that a great part of the estate is no longer available due to inter vivos transmission by the deceased. What this Court is concerned with is the net estate available for distribution. In my view the assets remaining for distribution are bank balances in accounts the deceased had in Absa Bank and Standard Chartered Bank and shares in Sagana and Sasenyi Cooperative. I direct the above be shared equally by the beneficiaries in accordance with Section 40 of the Law of Succession Act as the deceased.
28. Plot No.12/18 Chaani was improved by Frida Mshai. I order that it be registered in her name and her children. Although the first wife of the deceased lived there with him initially, she abandoned it upon separation. This court prefers a course of action that will create the least disruption.
29. There was contestation as to who bought Plot No.12/23 and whether it still belonged to the estate. I have seen the demand notes from the County/Municipal Council. I am satisfied that the same belonged to the deceased. Since the second house has Plot No.12/18 Chaani, it will only be fair and just that the first house gets this Plot. In the circumstances, Plot No.12/23 shall, therefore, go to the house of Regina Chao Mwarigha.
30. The upshot of the foregoing is that the protest is dismissed for not having merit. The Summons for Confirmation of Grant date 22nd March 2022 is hereby allowed as prayed. The grant issued on 5th February 2021 is confirmed. The estate shall be distributed as per the schedule of distribution dated 22nd March 2022.
31. As this is a family matter, the parties will bear their own costs.
32. Orders accordingly.
Dated and signed at Mombasa this 16th day of August 2024. Delivered virtually through Microsoft TEAMS