JUDGEMENT
(Being an appeal against the Judgment and decree of the SPM’s court Othaya in Succession Cause No. 31 of 2019 delivered on 29th March 2019)
INTRODUCTION
- The appellant in this appeal applied for letters of Administration in respect of the estate of the late SIMON MBOGORO NJAGI alias MBOGORO S/O NJAGI alias MBOGORO S/O NJAGI who had died intestate.
- The Appellant was the son of the deceased whereas the Respondent was the daughter in law to the deceased.
The deceased Simon Mbogora had two sons. The Respondent’s husband had died as at the time the letters of Administration were sought.
3).The Respondent was a daughter in law of the deceased Simon Mbogoro Njagi and she claimed that she was entitled to a share of the Estate of the deceased for she was the surviving spouse of a son of the deceased. The Appellant was her brother in law.
4)The letters of Administration to the Appellant on 16th September 2015 and it was the Appellants desire to have them confirmed
5)Following the protest, the learned Honourable Senior Resident Magistrate heard the matter and in the end confirmed the grant given to Kingori Mbogoro on 29th March 2019.
6)The Learned Honourable magistrate further ordered that land parcel Number OTHAYA/UHURIVIO/96 be shared equally between the Appellant and the Respondent.
7) It is the order for Equal Distribution of the land that culminated into this Appeal.
8)The Appeal vide a memorandum of Appeal filed on the 26th April 2019 raised of grounds of Appeal.
9)The Appellant contents the following:-
a)the learned Honourable Magistrate erred in law and fact by that the protestor was entitled to a share of the deceased’s Estate when she was not a child of the deceased contrary to Section 35 (5) of the Law of Successions Act Cap 160 of the Laws of Kenya.
b)that there was no evidence led to prove that the Respondent was married to the Appellants deceased brother either under statute or customary Law.
c)that the learned Honourable Magistrate dwelt with issues of marriage at length as opposed to the succession issue.
d)that the Learned Honourable Magistrate erred in law by importing the doctrine of presumption of marriage against the weight of evidence.
e)that the issue of presumption of marriage was not pleaded by the Respondent and she merely testified that she was staying with the Appellants brother.
10)The Appellants, on the basis of he matters aforegoing, pleads with this court to find that the decision by the learned Honourable Magistrate occasioned a failure of justice in that the Magistrate conferred rights of inheritance to the Respondent when she was not entitled under the law.
11)The issues that rise from the grounds presented by the Appellant are:-
a)Whether a daughter in-law is entitled to inherit from her father in law under the law of succession.
b)Whether a court dealing with matters under the law of succession has any business going into determining the marital status of a proposed beneficiary.
12)It is my view once the twin issues are resolved, the Appeal by the Appellant will have been adequately dealt with.
ANALYSIS AND DETERMINATION
13 The appellant vide his submissions filed on 4th September 2023 argues that the law of Succession act under Section 38 provides for the instances where an intestate has left a surviving child or children but no spouse.
14)The Section states:-
“ 38. Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall equally be divided among the surviving children.”
15)According to the Appellant, the fact that the Respondent does not qualify to be deemed a child of the deceased, she automatically is precluded from receiving a share of the deceased’s estate.
16)The protester does not come under the color of being a child and therefore there is no merit in the submission by the Appellant.
17)Assuming the protestor was to meet the legal test of a wife to the deceased’s late son, her children would qualify to inherit from the deceased’s estate by taking up the share their late father would have taken.
18)The protestor therefore could only be entitled to seek a share of the deceased’s estate to hold in trust for her under age children but certainly not as a direct beneficiary.
19)In Re-estate of FRANCIS ANDACHILLA LUTA (Deceased) [2022] KEHC 16900 (EKLR), the learned Honourable Mr. Justice W Musyoka held:-
“ 30. The protestor is not a child of the deceased. She is a daughter in-law. In terms of rights and entitlement to a share in the estate, she had not at all. She is not in the same league with the supplicant nor the son, Andrew Muchenditso Nor any of the other daughters of the deceased. She has zero right or entitlement. It is her children, with her late husband, who have right or entitlement, to a share of the estate, by dint of Section, 41 by way of stepping into the shares of their late father. The protestor can only agitate a claim on behalf of her late husband, and she can only agitate the same upon obtaining a grant of representation to his estate, for it is only that grant that would clothe her with authority to speak on behalf of her husband.”
20)This court adopts a similar position to that expressed by the Honourable Justice Musyoka.
21)It is not enough for the Learned Honourable Magistrate to have been satisfied that she was a wife to the deceased’s son. She was under obligation to tender evidence that she was the legal representative to his estate.
22)In effect therefore the respondent’s position in relation to the estate of the deceased was that of a stranger to the estate in so far as she did not demonstrate that she was the legal representative of her late husband.
23)The mere fact that she was living with her deceased husband could not of itself confer upon her the right to inherit part the deceased’s estate who was her father in law.
24)The learned Honourable Magistrate further stated in her judgment that: -
“it is thus my finding that the protestor was married to Kanyoro Mbogoro whether they had children together or not. It is no wonder that the protestor is living on that land to date long after her husband had died”
Having found that the protestor was Kanyari Mbogoro’s wife is entitled to her husband’s share of the subject land. The protestor will thus get half-share of the land being the portion which her late husband was entitled to in law”.
25) It is this statement in the Judgment that provoked the instant appeal.
26)The Magistrate effectively determined that Respondent had become a wife by presumption given the long period she had lived with the deceased.
27)However, the learned Honourable Magistrate got it all wrong in the matter of inheritance of the deceased’s property.
28)The protestor could not acquire the right to inherit from the deceased simply because she was a daughter in law.
29)As the first Appellate court I have taken the trouble to evaluate the evidence on record with a view to drawing my own conclusions.
30)The Appellant in his testimony conceded that his late brother Kanyari Mbogoro had brought the Respondent on the land in 2001 and she lived thereon till the time the matter went to court.
31)I have noted that as at the time the Appellant gave Evidence the Respondent was on the land for a cumulative period of 18 years.
32)The Appellant did not have a problem with the Respondent getting a share of the land limited to the portion she had occupied over the period and was utilizing.
33)The gratuitous act of the appellant was not considered by the Magistrate who went ahead to order equal subdivision of the land between the Applicant and the Respondent.
34)To my mind, the court should have taken into account the offer by the Appellant and purely on the basis of that offer proceed to order that the portion occupied by the Respondent be hived off the land parcel Number OTHAYA/IHURIRO/96 and transferred to her.
35)The Respondent had no right to inherit as a daughter in law but here was a brother -in- law ready and willing to accommodate her. The offer by the appellant was voluntary and since the respondent has all along lived on that land with the full knowledge of the appellant, he cannot seek to render her homeless. It is my considered view that the respondent should appropriate the portion she has lived on all along.
36)The Respondent in her submission sought to hinge her claim on the provisions of Section 38 of the Law of Succession Act on equal distribution.
37) I am not persuaded that the said provision of law could come to her aid either. Equal distribution could only happen if she was indeed a rightful beneficiary.
38)Equal distribution as a principle would only be applicable to the beneficiaries lawfully entitled to inherit from the deceased not a person falling in the category of the Respondent.
39)In the final analysis I find that the Appeal by the Appellant has merit and accordingly partially allow the same to the extent that the order for equal distribution is set aside and substituted therefore with an order that Land Parcel Number OTHAYA/IHURIRO/96 is to to be subdivided to accommodate the interest of the respondent on the portion she has been occupying. The appellant is estopped from denouncing her accrued rights over that portion since he stated on oath that he had no problem with her getting that portion.
40)The order by this court is made to ensure that justice is served to both parties and promote harmony within the family unit. Article 45 of the Constitution recognizes family as the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the state.
41) The Appellant has graciously agreed to accommodate the Respondent as is stated above. It would be remiss of this court to ignore that portion of Evidence.
42)The order for hiving off the part occupied by the Respondent from the suit land is purely made on the basis of the offer made by the Appellant at page 41 of the record of Appeal wherein the Appellant states;
“I have no problem with Lydia getting the portion she is using as I am the one who have her that portion. Lydia will occupy the portion as wife to Kanyoro but the portion is not hers”
43) The court is alive to the emotive nature of land issues in this country thus the need to fashion an order that promotes harmony within the family set up.
44)In the end the Appeal by the Appellant partially succeeds by setting aside the order for Equal distribution and substitution therefore an order for equitable distribution to accommodate, the Respondent’s interest to the portion she occupies.
45)It is so ordered.