[2017] KEHC 2563 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 60 OF 2001

IN THE ESTATE OF NYANDUKO MAOKA MOGAKA – DECEASED

PHILIP MAOKA MOGAKA ..........PETITIONER (DECEASED)

AND

ALICE BONARERI NYABANDO ….......................APPLICANT

AND

GEORGE BUNDI …........................................1ST OBJECTOR

PICKFORD BUNDI …...................................2ND OBJECTOR

R U L I N G

1. By her application dated 14th March 2017 the applicant prays for the following orders;

1) that the grant of Letters of Administration intestate made to the said Anne Bonareri Birimo and George Nyakora Bundi on 17th February 2015 be confirmed.

2) That distribution of the deceased (Nyanduko Maoka Mogaka) property among the beneficiariesbe made and or adopted vide the court judgementof 29/7/2011.

3) That the original administrator (Philip Maoka Mogaka now deceased) share of 1. 78 acres land in the deceased's (Nyanduko Maoka Mogaka) estate be shared out equally among all the surviving beneficiaries.

2. The application is supported by the affidavit of Alice Bonareri Birimo together with the attached annextures. From the history of the matter it appears that both Justice Koome (as she then was) and Karanja – J heard the matter substantially and made significant findings. There is no doubt reading their decisions to conclude that the land in question is Kwanza/Namanjalala/

Block 1 (Goseta) 103 measuring 8. 99 acres. Further the list and the shares of the beneficiaries are clearly stated and stipulated in the pleadings herein.

3. The issue at hand however is the portion earlier given to one Philip Maoka Mogaka who was the original administrator but now deceased. His portion was measuring 1. 78 acres.The applicants content that the same be shared equally among the surviving beneficiaries.

4. George Nyakora Bundi a grandson to the said Philip Maoga Mogaka argues that that portion ought to be shared between him and his brother Pick ford Bundi. His argument is that they have been living in their late grandfather's land and now that they are grown up, they should be given the same. He further depones that the rest of the beneficiaries whom I belief are their aunts already benefited from the estate and in any event they are married and staying elsewhere.

5. I have read the submissions by the applicant as well as the learned judge's decisions. The said George Bundi and his brother did not file any appeal to the decision or apply to have any of it reviewed. Secondly and more importantly they are grandchildren to the deceased.

6. Section 3(2) of the Law of Succession Act defines children as;

“2) References in this at to “child” or “Children” shall include a child conceived but not yet born (as long as that child is subsequently born alive ) and in relation to a female person, a child born to her out of wedlock, and , in relation to a male person, a child whom he has expressly recognised or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”

7. For the above reason the two objectors being grandsons to the deceased are not entitled to share directly in their grandfather's property but through the share of their father Francis Bundi just like Alice, Elizabeth and Pamela who are the children of the deceased herein. Pursuant to the provisions of Section 38 of the Succession Act they are entitled to share equally the property of their father Philip Mogaka.

8. In the case of“In the matter of the estate of the late Veronica Njoki Wakegoto – Deceased (2013) eKLR High Court at Nairobi Succession Cause No. 1974 of 2008 Musyoka Jstated as follows;

“Under part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents indirectly through their own parents, the children of the deceased.

The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren's own parents are dead.

The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.

In this case, the applicants mother survived the deceased.

She is the one entitled under Part V to inherit her mother; the applicants deceased grandmother.

The applicant clearly has no claim under Part V as long as his mother survived the deceased.”

9. It appears that the grandchildren can inherit the property of his grandparents when his parents are dead.

They are entitled to the share their parents would have inherited.

10. In this regard the objectors are entitled to the share of their father Francis Bundi which is 1. 8 acres which is to be shared equally with the rest of the beneficiaries. In the premises I do allow the application as prayed and for avoidance of doubt the same shall be shared as follows;

1. Alice Bonareri Birimo – 0. 45 acres

2) Elizabeth M. Birimo Bundi – 0. 45 acres

3) Pamela Kemuma Bundi – 0. 45 acres

4) Francis Bundi: George Bundi 0. 225 acres }

Pickford Bundi – 0. 225 acres } = 0. 45 acres

Total acreage 1. 8 acres.

11. Obviously they should each add to the earlier share of 1. 8 acres respectively as ordered by the court.

12. Each party shall meet its own costs.

Delivered, signed and dated on 9th day of October, 2017 at Kitale.

In the presence of;

Onyancha for 1st Petitioner

Samba for Objector

Kirong – Court Assistant

_____________

H.K. CHEMITEI

JUDGE

9/10/17