About 9pm on October 4, 2012, fire broke out at Malindi High School. Deputy Principal Godfrey Kituku together with his wife Regina Mukui and their six children who were asleep in the family house all died in the blaze.
Their tragic deaths set the stage for an acrimonious succession battle for the control of a Sh15 million estate pitting the family of the deputy principal on the one side and that of his wife on the other.
According to the law of succession, when a deceased person is survived by a spouse and child or children, the other relatives are not entitled to a share of the estate.
The deceased’s parents are only entitled where there is no surviving spouse or child.
But in the case of the death of the whole nuclear family, who is entitled to administer the estate? It is a question the court had to grapple with.
Both were 39 years old and graduate teachers, although the wife had quit her teaching career to concentrate on family business.
The distribution of assets they left behind is the question the court considered in what has become a precedent setting succession suit where both the spouses’ families won the battle to control the estate.
Mr Kituku Mutiso, the father of the late deputy head teacher lodged a suit seeking letters of administration for both his son and daughter-in-law.
He filed the succession cause in 2012 and the court granted him letters to administer the estate on October 3, 2013.
But Regina’s father Mr Ndaka Mutinda filed an objection claiming he was entitled to manage the estate of his late daughter. As fate would have it, Mr Mutinda died before the issue was resolved and his son, Mr Joseph Mbevo, asked the court to substitute him in the suit.
On April 10, 2015, Mr Mutiso and Mr Mbevo were jointly appointed administrators of the estate.
Mr Mutiso told justice Said Chitembwe (left) that the objection in the succession case by the late Mr Ndaka was due to an unpaid dowry balance.
He said in the Kamba tradition, once a woman is married off and the dowry paid, her family is precluded from laying claim to the estate as she is fully assimilated in her husband’s family.
Mr Mutiso submitted that the Kamba customs prevented the family of Mr Ndaka from claiming inheritance of the daughter/sisters’ estate as the marriage had met all customs.
Mr Mbevo objected to Mr Mutiso’s arguments, saying their daughter had siblings who were beneficiaries of her assets.
Justice Chitembwe agreed that African customary law was applicable after he was informed that under Kamba customs, after payment of ntheo (dowry), the marriage is consummated and any claim thereafter could only be to the extent of the agreed dowry.
The judge was told that in this instance ntheo was paid and Regina became fully assimilated to the family of Mr Kituku.
It was submitted that before the couple and the children were buried, both families had agreed in writing that any pending dowry would be paid in full after which Regina’s family would have no further interest in the estate.
The judge ruled that where parents die and there are no surviving children, the Succession Act allowed the parents of both deceased to succeed them.
“And if they are dead, like in the case of Regina, her mother steps in. If Regina’s mother is dead too, then her brothers and sisters are allowed to inherit her property,” said the judge.
On customary law and the Kamba traditions, the judge faulted Kituku’s family saying: “I don’t find that Regina became assimilated to her husband’s family and her own estate was subsumed by that of her husband”.
The judge said: “Regina was a graduate and could have as well bought her own property and such assets would have formed part of her own estate”.
The judge noted that Regina’s estate was distinct from that of her husband whether dowry was paid or not.
“Regina’s family cannot be pushed to the periphery simply because she was married to Mr Kituku. Her family is entitled to claim her estate,” ruled justice Chitembwe.
He said Regina had an estate of her own to be inherited, noting that she took care of the children and run the family businesses, although they were registered in her husband’s name.
The judge apportioned her contribution to the estate less the gratuity at 35 per cent.
The judge said the deputy head teacher cum businessman had a monthly net income of more than Sh180,000 while his wife, brought home over Sh100,000 in her monthly returns.
He directed the families to compile a proper statement of accounts of the estate and the valuation of each property, after which it would be distributed to both families.