The case of the Estate of Ibrahim Wathuta Mbaci appeared before HON. A. Mshila, and judgement delivered on the 13th day of December 2018.
Ibrahim Wathuta Mbaci, (deceased) who died on the 16th August 1994 aged 84 years had two wives; Ruth and Mary. The First wife Ruth, was deceased. Wathutas’s estate consisted of three properties namely:
(ii) Eusonyiro/Suguroi Block VII/377
(iii) North Tetu Farmers Co. Ltd Plot No. 0063
The first wife, Ruth, had four children (one dead), while Mary had 12 children, including the son he walked into the marriage with and a dead daughter.
Mary applied for and was granted Letters of Administration. Later she applied for the Confirmation of the Grant and proposed a mode of distribution of the deceased husband’s property registered in her name that purported to have been signed by all her children.
Subsequently, SAMUEL WACHIRA KAMUHIA and JOSPHAT MAINA KAMUHIA, both Mary’s Children, filed protests against the Grant of Confirmation.
Also, two daughters of Ruth jointly filed their Affidavit of Protest.
Mary’ Children Case
Samuel and Josphat testified that their stepmother, Ruth, died in 1987 and their father ten years later. Since their father did not lock out his step-sisters from tilling his land, they proposed that
- The three properties are divided equally between the 1sthouse and the 2nd Further that Mary is given a life interest over her houses portion.
- Since each wife had been given their portion, and that the 1st wife was buried on the portion granted to the 2nd house, they proposed that a swap of the portions be done and the portion where the 1st wife was buried be given to the 1st house and vice versa.
Ruth’s Daughters case
They complained that Mary had only involved her own children and that she had not obtained Consent from Ruth’s children when she filed for the Letters of Administration. Mary’s intention was therefore to disinherit them.
They proposed that each of the two houses of their father should get half a portion of each property.
Mary testified that her late husbands’ wishes were that she becomes the administrator of his estate.
She proposed that since only sons were allowed to inherit properties in Kikuyu customary law, and since her co-wife’s daughters were married and were therefore not entitled to benefit, she wanted the estate divided among the six sons of Wathuta and registered in her name as she was the surviving widow of the deceased.
After hearing the presentations the court framed the following issues;
(i) Whether all the children of the 1st house were beneficiaries and whether they are entitled to benefit from the deceased’s estate;
(ii) Distribution of the estate of the deceased.
As to the only dispute was whether the married daughters are entitled to a share of the deceased’s estate, the court found the applicable provision of the law is Section 29 of the Law of Succession which defines a dependant, and it reads as follows;
“Section 29: For the purposes of this Part ‘dependant’ means- (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;
It concluded that from the reading of the above section was clear that the succession laws disregard customary law and that it allows all the deceased’s children inclusive of those daughters who had gotten married whether or not maintained by the deceased prior to his death to benefit from his estate
Since Wathuta’s marriage was polygamous, section 40 of the Law of Succession was found to be applicable. It reads;
“Where an interstate 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.”
The estate of a polygamous deceased should be distributed according to the number of children and not the number of houses. The court concluded that the married daughters are dependants and beneficiaries of the deceased and qualify to inherit the deceased estate. But due to the consensus by the siblings on the mode of distribution, the court decided to adhere to the method proposed by them. Mary’s method of distribution was found to be unfair and discriminatory.
The first house is found to comprise of four daughters. Although one is deceased, the surviving sisters had invited their deceased sister’s children to claim their late mother’s portion. This then translates to four units. The second house comprises of eleven members and Mary is the extra unit bringing the total in this house to twelve units. Overall total number of units is therefore 16.
The deceased’s estate shall be distributed as follows;
- Thegenge/Kihora/69: Shall be apportioned equally between the 1st house and the 2nd house. The 1st house shall take the portion that hosts their deceased mother’s grave. Mary shall hold a life interest in the 2nd house’s half portion share, and upon her death, this portion shall be divided equally between her surviving children.
- Eusonyiro/Suguroi Block VII/377-shall be divided on a ratio of 4/16 for the first house; and 12/16 for the second house; Mary shall hold a life interest of the second houses share the life interest to terminate upon her death and shall then be shared equally between all her surviving children.
- North Tetu Farmers Co. Ltd Plot No.0063–the property to be divided according to the determined ratios; Mary shall hold a life interest of the second houses share and upon her demise it shall be shared equally amongst all her surviving children.