Case ID:178548

In re Estate of Eliud Simon Mbilu (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 479 of 2018

Parties:

In re Estate of Eliud Simon Mbilu (Deceased)

Date Delivered:

18 Jun 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Estate of Eliud Simon Mbilu (Deceased) [2021] eKLR

Court Division:

Family

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 479 OF 2018

IN THE MATTER OF THE ESTATE OF ELIUD SIMON MBILU (DECEASED)

RULING

(1) This matter involves the distribution of the estate of the late

MAJOR GENERAL ELIUD SIMON MBILU

(hereinafter

‘the Deceased’

) who died intestate on

30

th

April 2017.

The parties vide two consents dated

29

th

September 2010

and

3

rd

November 2020

were able to agree on the distribution of much of the estate. They were however unable to agree regarding the distribution of four (4) properties / assets namely:-

“(a) Property known as Title Number Mulango/Wikililye/ 440 measuring 1.0 Hectares.

(b) Military Sword and Kenya Navy Uniform held at Itoleka Police Station.

(c) Household items and personal effects.

(d) Property known as Title Number Mulango/Wikililye/286 where the Deceased’s Kitui matrimonial home is built or constructed.”

(2) The matter was canvassed by way of written submissions. The Petitioner

EUNICE SIMON MBILU

filed her written submissions dated

17

th

March 2021

whilst the Co-Administrator

MARIE KASYOKA MBILU

relied upon the written submissions dated

21

st

April 2021.

BACKGROUND

(3) The Deceased Major General

Eliud Simon Mbilu

got married to one

Avia Kavutha Mbilu

in the year

1958.

Their union was blessed with six (6) children namely-

(i) Marie Kasyoka Mbilu

(ii) Betty Syombombe Mbilu

(iii) Peter Kithuka Mbilu

(iv) Nancy Mwende Mbilu

(v) Julie Syomiti Mbilu

(vi) Esther Mwikali Mbilu

(4) The 1

st

wife of the Deceased passed away on

31

st

December 2012

thereby pre-deceasing her husband. However when the Deceased retired to his rural home in Kitui in the year

1988

, he had begun to cohabit with the Petitioner who also hailed from the same village

.

The union between the Petitioner and the Deceased was not blessed with any issue. The Deceased then passed away on

30

th

April 2017.

The names of all the beneficiaries to the estate of the deceased (over which there is no dispute) was duly confirmed by a letter dated

11

th

October 2017

written by the Chief

Wikililye Location, Katulani District, Kitui County.

(5) Subsequent to the demise of the Deceased on

29

th

April 2019

Letters of Administration Intestate were issued to his 2

nd

wife

Eunice (Petitioner).

Later by consent of all the parties

Marie Kasyoka Mbilu

was appointed as Co-Administrator to represent the house of the 1

st

wife.

(6) On

23

rd

July 2020

the Petitioner

Eunice

filed an application seeking Confirmation of the Grant which had been issued to her. Thereafter the parties entered into two consents dated

29

th

September 2020

and consent letter dated

3

rd

November 2020

which contained agreement on how much of the estate of the deceased was to be distributed. However no consensus was reached regarding the following properties / assets:-

(1) Property known as Title No. Mulango/Wikililye/440 measuring 1.0 hectares.

(2) Military Sword and Kenya Navy uniform held at Itokelo Police Station.

(3) Household items and personal effects.

(4) Property Title No. Mulango/Wikililye/286 where the matrimonial home was built.

The determination regarding the distribution of the above was left to the Court.

ANALYSIS AND DETERMINATION

(7) I have carefully considered the submissions filed by both parties in this matter. It is not in dispute that the Deceased died intestate leaving behind two houses. I now propose to deal with each of the pending issues individually.

(i)

Title No. Mulango/Wikililye/440

(8) The Petitioner’s position is that the above property does

not

form part of the estate of the Deceased. The Petitioner claims ownership of the said property as it is registered in her name. The Petitioner was however unable to avail to this Court a copy of the Title deed for the said property as she claims that the Title Deed was collected by the Co-Administrator when she and her sisters broke into the matrimonial home. All that the Petitioner is able to exhibit as proof of ownership of the said property is an Agreement for Sale between herself and the Vendor.

(9) The Co-Administrator on her part asserts that

Plot 440

was excised from the ancestral land belonging to the family of the Deceased and was given to the Deceased who inturn pointed it out to his late wife

Avia Kavutha Mbilu

as the parcel of land where she was to build their matrimonial home. The Co-Administrator categorically denies the Petitioners allegation that she broke into the matrimonial home and took away the Title deed for that parcel of land.

(10) The Co-Administrator further submits that the 1

st

house conceded to the transmission of all that property in

Kitui Town Plot KTI/98/14A/F7

to the Petitioner in return for her relinquishing any claim over

Plot 440.

(11) Ownership of a parcel of land in Kenya can only be conclusively proved by the Title Deed. Where no Title Deed is exhibited the Court cannot conclusively determine who is the true owner of the property. The Petitioner seeks to rely on a Sale Agreement (Annexture

EM3

to her Further Affidavit which is not dated). That Sale Agreement indicates that the Vendor one

DAVID MALONZA MBUVI

agreed to sell to

Eunice Simon Mbilu

(the Petitioner herein) the ‘

Unsurveyed Residential Plot No. 2 Zone 0 Kitui Municipality

’ at a purchase price of

Kshs. 2,100,000/-.

The Agreement relates to an Unsurveyed Plot but the Petitioner claims that the property known as

Mulango/Wikililye/440

had a Title Deed. Further the Agreement indicates that the full purchase price was paid to the Vendor upon execution of the Agreement, but the Petitioner has availed no proof e.g bank records, copies of cheques etc to prove that she did indeed pay the full purchase price. In short the existence of a Sale Agreement does not provide proof firstly that the sale was completed or secondly that the property in question as actual fact transferred to the purchaser.

(12) The Co-Administrator on her part asserts that

Plot 440

which belonged to the Deceased forms part of his estate and prays that the same devolve to the 1

st

house to the exclusion of the Co-Administrator.

(13) Without the Title Deed, this Court cannot decide one way or another. I find it very curious that neither party sought the assistance of the Court seeking orders to compel the

Land Registrar, Kitui

to avail the records of this piece of land. It would seem that they both had something to hide. In the circumstances I decline to make a determination on the issue of

Title Number Mulango/Wikililye/440

and instead direct that Summons issue to the

Chief Land Registrar, Kitui

to avail in Court records pertaining to ownership of

Title Number Mulango/Wikililye/440.

(ii)

Household Goods and Personal Effects

(iii)

Military Sword and Kenya Navy Uniform

(14) Items (ii) and (iii) will be dealt with together as they jointly constitute the personal effects of the Deceased. The Deceased herein was pre-deceased by his 1

st

wife

Avia Kavutha Mbilu.

At the time of his death therefore the Deceased was survived by his 2

nd

wife

Eunice Simon Mbilu

as well as his

six (6) children

from the 1

st

house.

(15) In her written submissions the Co-Administrator has dwelt at length on the undesirability of the relationship between the Petitioner and the Deceased and has even suggested that the relationship (marriage) was unlawful as it was repugnant to culture. However the Co-Administrator took no legal steps to have that marriage annulled and indeed concedes that the Co-Administrator was a

wife

to the Deceased. The fact remains that this is the woman whom the Deceased opted to live with after the death of his 1

st

wife and it has not been denied that she was a wife to the Deceased. Todate there has been no legal anullment of the union between the Deceased and his 2

nd

wife. Indeed the Petitioner was granted Letters of Administration in respect of the estate of the Deceased

together with

the Co-Administrator. I therefore find and hold that for the purposes of Succession the Petitioner

Eunice Simon Mbilu was

a wife to the Deceased.

(16) The Petitioner submits that as the surviving wife of the deceased she is entitled under

Section 35

of the

Succession Act

to the personal effects of the Deceased. On the other hand the Co-Administrator submits that in light of the fact that these household items were acquired

before

the Deceased married the Petitioner (she even claims that the same were acquired

before

the Co-Administrator was even born), the said household items ought to be distributed to the Co-Administrator and her siblings.

(17) Regarding the Military Uniform and Sword the Co-Administrator submits that the items are of sentimental and emotional value to the children of the Deceased who lived with him and watched their father rise up in the ranks of the Military. That the children ought to be given the said items to enable them set up a Mausoleum in remembrance of their father.

(18)

Section 35

of the

Law of Succession Act

provides as follows:-

“35. Where intestate has left one surviving spouse and child or children-

(1) Subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children,

the surviving spouse shall be entitled to

-

(a)

the personal and household effects of the Deceased absolutely; and

(b) a life interest in the whole residue of the net intestate estate; provided that, if the surviving spouse is a widow, that interest shall determine upon her re-marriage to any person.” [own emphasis]

(19)

Section 40

of the same

Act

provides for the distribution of household and personal effects where a Deceased is polygamous as follows:-

“40. (1) 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 estate 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.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in Sections 35 to 38.”

(20) The Petitioner herein was a wife to the Deceased for the purposes of

Section 29

and

40

of the

Act.

In arriving at the appropriate mode of distribution the Court should take into account

Sections 35, 38 and 40

of the

Act. Sections 35(5)

and

38

emphasize that there should be equality in the distribution of the personal effects of the Deceased. Accordingly I find that the surviving spouse

Eunice Simon Mbilu

is entitled to a

life interest

in the Deceased’s personal and household effects.

(21) Regarding the Military uniform and Sword it is not in dispute that the Petitioner came into the life of the Deceased upon his retirement from his Military career. As such it was the 1

st

wife and her children who lived with the Deceased during the period of his active Military Service and who watched him progress to the level of

Major General

. I am in agreement that the Military Paraphernalia are of great sentimental value to the children of the 1

st

house and will provide them with a suitable way to remember their father. Therefore I direct that the Military Sword and Kenya Navy Uniform held at

Itoleka Police Station

be released to the Co-Administrator as representative of the 1

st

house.

(iv)

Title Number Mulango/Wikililye/286

(22) The Petitioners position was that this was the property upon which the Deceased constructed his matrimonial home. The Petitioner submits that she is entitled to the matrimonial home as this is where she lived with the Deceased for

twenty one (21) years

prior to his demise.

(23) On her part the Co-Administrator asserts that this piece of land forms part of the ancestral land and claims that the Title of said parcel of land is registered in the name of

Kithuku Ndunda,

the father of the Deceased. Therefore the position of the Co-Administrator is that

Title Number Mulango/Wikililye/286 does not

form part of the estate of the Deceased.

(24) However it is not denied that the Deceased had constructed his matrimonial home on the said parcel of land. In her undated Further Affidavit the Petitioner averred as follows:-

“7. Our matrimonial home is located at the ancestral land which land was apportioned to all the children of the Deceased’s father. As is tradition under Kamba Customary Law, the Deceased had constructed our matrimonial home in his portion of the ancestral land following the said apportionment.

In the premises the matrimonial home built in the ancestral land forms part of the Deceased assets

.” [own emphasis]

(25)

Section 2

of the

Matrimonial Property Act

defines a “

matrimonial home”

as-

“

Any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home and includes any other attached property.”

(26) In the case of

In RE ESTATE OF S.K.G (DECEASED) [2018]eKLR

, the Court stated as follows:-

“Indeed a Matrimonial Property has such significant sentimental value that is unique to the occupier or owner and the last thing any occupant would imagine of is moving out of a house he or she has lived in for several years or throughout his or her life time to start a new life elsewhere and in a new environment. Fortunately, in this case, parties are in agreement that the widow should retain her matrimonial home.”

(27) In the case of

RE ESTATE OF JOHN MUSAMBAYI KATUMANGA (DECEASED) [2014]eKLR

the Judge stated as follows:-

“As mentioned earlier the Deceased was survived by a spouse. She describes herself as a housewife who was wholly dependent on her late husband. Under Part V, a surviving spouse is entitled absolutely to the Deceased spouse’s chattels and a life interest in the remainder. The surviving spouse, particularly the widow, is regarded as having the greatest stake in the estate. Spouses during marriage take care of each other. They depend on one another for a variety of material and emotional things. The dependency is usually higher on the part of the wife. In the traditional step-up the wife takes care of the home and the children, while the husband is out looking for resources for the family’s sustenance. Often the women are housewives or persons holding lowly jobs, which afford them time to be close to their homes and family.

It is in recognition of this arrangement that the law of marriage imposes a duty on husbands to provide for and maintain their wives. This duty remains even after death, but this time the burden is on the estate. It is because of it that the surviving spouse takes the household goods and enjoys a life interest in the capital assets

.

Ideally, an estate ought not to be distributed during life interest. Life interest and minority are on the same face of the coin, they result in a continuing trust which ends with the termination of life interest or minority. This would mean that the surviving spouses and minor children occupy a special place in the succession arrangement. They are vulnerable and need protection, and therefore they deserve special attention during distribution.” [own emphasis]

(28) It is established by case law and is trite that the matrimonial home will devolve to the surviving spouse. In the case of

ELIZABETH WANJIRU NJONJO RUBIA –VS- BRIAN MWAITURIA [2019]eKLR

the Court of Appeal held that a widow who spent all her married life with the Deceased living in the matrimonial property and contributed towards its construction was entitled to a life interest in said property. There is no evidence the Petitioner contributed towards construction of the matrimonial home. However the Petitioner lived with the Deceased in this property for

21 years

. In the circumstances I find that the Petitioner is entitled to a life interest in the property known as

Title Number Mulango/Wikililye/286

. Upon her death or remarriage the property will revert to the Co-Administrator and her siblings.

(29) Finally I make the following orders:-

(1) The household items and personal effects of the deceased shall vest in the Petitioner.

(2) The Military Sword and Kenya Navy uniform held at Itoleka Police Station shall devolve to the Co-Administrator

Marie Kasyoka Mbilu

as Trustee for all her siblings.

(3)

Title No. Mulango/Wikililye/283

upon which the matrimonial home stands shall devolve to the Petitioner

Eunice Mbilu Simon

during life interest and upon her death or re-marriage the same shall devolve to the Co-Administrator as Trustee for all her siblings.

(4) Summons to issue to the Registrar of Lands Kitui County to avail in Court the ownership documents for

Title No. Mulango/Wikililye/440

.

(5) Each party shall bear its own costs.

DATED IN NAIROBI THIS 18

TH

DAY OF JUNE, 2021.

..........................................

MAUREEN A. ODERO

JUDGE