Petronila Wanza Masilia
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African customs, law clash as sisters win 30-year battle over Sh500m Makueni chief's fortune

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Petronila Wanza Masilia during an interview at Kiatine Village, Makueni County, last Friday. She is the face of a 30-year suit against her brothers over her late father’s estate.

Photo credit: Pius Maundu | Nation Media Group

Bid by sons of a former Makueni chief to disinherit his surviving widow and daughters has hit a snag, after the Court of Appeal directed that the estate be distributed equally.

The appellate court ruled that Masilia Mwavu’s surviving widow, Annah Mbula Masilia, and each of his 14 children are entitled to an equal share of his vast estate in and around Wote Town whose value is estimated to be upwards of Sh500 million.

“We are heading back to Makueni High Court next week as directed by the Court of Appeal to chart a way forward on how to share our father’s wealth,” Ms Petronila Wanza told Nation in an interview at Kiatine Village in the company of her sister Jacinta Mutio.

The two have been the face of the court battle which has lasted more than 30 years against their brothers led by Thomas Muthiani Masilia.

The women were opposed to a 2019 ruling by the High Court on the distribution of the estate which the Court of Appeal denounced on grounds of being discriminatory.

In their judgment, Justices Abida Ali-Aroni, Grace Ngenye and Hellen Omondi of the Court of Appeal set the High Court free to appoint a reputable firm of valuers in case the parties fail to do so.

The Court of Appeal expects the company to value Mzee Masilia’s estate, and among other things, “give details of the acreage, developments if any on each property, proximity to Wote Town and the current market value per acre and/or the entire property”.

Law of Succession  

“The valuation is to be undertaken within a reasonable period taking into consideration the age of the matter. Based on the valuation, fresh distribution of the assets be done based on Section 40 of the Law of Succession Act.”

Trouble started shortly after Mzee Masilia died on September 24, 1980. The wealthy chief was married to Annah and Beth Ndunge Masilia.

According to court documents, Mr Muthiani rushed to Machakos High Court in 1992 and applied for a grant in a bid to control his late father’s wealth. The High Court issued Mr Muthiani with the letters of administration of the estate two years later.

When he listed himself and his brothers as the only survivors of the deceased, he had no idea he was courting trouble.

As the court established, Mzee Masilia’s sons plotted to disinherit their sisters using the Kamba customary law, which limits the rights of women and girls to inheriting property when a parent dies.

If things had gone to plan, Mr Muthiani and the brothers would have distributed their father’s estate among themselves. But their sisters could hear none of it.

When they could not take it anymore, Mzee Masilia’s daughters went to the court to seek justice over the attempted disinheritance.

They argued that Mr Muthiani had obtained the grant fraudulently based on falsehoods and that it was defective in nature since some of the beneficiaries had been disinherited and others replaced.

In opposing the application for revocation of the right to administer the estate, Mr Muthiani was at pains to prove his claims that his father had distributed the property amongst his sons and made provision for his daughters’ acceptance by his sons, maintenance and support in case they remained unmarried or were divorced.

The ensuing tug of war has driven a wedge between Mzee Masilia’s sons and daughters as they traversed the corridors of justice for more than 30 years in a matter characterised by various applications, leading to setbacks evidenced by dissatisfactory rulings and judgments.

The rift turned to a bitter rivalry in 2016 when the daughters secured the revocation of the letters of administration issued to Mr Muthiani.

A negotiated agreement on the distribution of Mzee Masilia’s wealth which had the blessings of all his children would have settled the succession matter eight years ago, were it not for an objection raised by his surviving widow, Annah.

Negotiated agreement

She rushed to court and claimed that the children had kept her in the dark regarding the distribution of her late husband’s estate.

The trial court revoked the negotiated agreement in the distribution of the estate after it also established that Mzee Masilia’s children had taken the identity card of his surviving widow to court to indicate that she had consented to the formula of distributing her deceased husband’s wealth, and that they had lied that she was unwell at that point.

The parties disagreed on the mode of distributing the estate when they appeared before Justice Hedwig Ong’undi, leading to the court distributing the estate. Ms Wanza led Mzee Masilia’s daughters in contesting the distribution of the estate by the court.

The lack of a written Will to guide the distribution of the estate and the apparent discrimination against his daughters by his sons, underpinned the appeal by the daughters.

“In our view, the evidence by those propagating the view that the deceased had shared his property among his two widows and his sons, under Kamba customary law, is not cogent. It is contradictory and has not been proved to the required standard,” reads a section of the Court of Appeal judgment seen by Nation.

“We also take note that when the sons applied for their initial grant, they left out the first respondent, a widow, meaning that they did not comply with the alleged ‘wish’ of the deceased. Secondly, there is no consensus amongst the family that there was such a ‘wish’. Thirdly and more importantly there is the cry from the deceased daughters that they were discriminated against at the point of distribution by their brothers,” reads the judgment.

The Court of Appeal relied on Article 40 of the Law of Succession Act to offer relief to Mzee Masilia’s daughters. It promotes equality in inheritance.

“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 interstate 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,” reads part 1 of Article 40.

With this background, the appellate court judges were unequivocal that the trial court had discriminated against Mzee Masilia’s daughters in the distribution of his wealth.

“The daughters were not considered as a unit each as required by Section 40 of the Law of Succession Act but were lumped together as if they were one unit. Further, the allocation to them was far much less, and the assets of much less value without any reason or justification,” the appellant judges said in the judgment which has cemented the rivalry among Mzee Masilia’s children which has been building up since he died 44 years ago.