[2006] KEHC 29 (KLR)
The court found that the deceased had, during his lifetime, allocated Plot No. 6231 (measuring 0.10 hectares) to his son Josephat, as evidenced by the consent of the Land Control Board. In accordance with Section 42 of the Law of Succession Act, this prior allocation must be considered in the final distribution....
Source-derived case information.
- Citation
- [2006] KEHC 29 (KLR)
- Parties
- Applicant: Charity Wanjuki Ndambi; Respondent: Jane Rwamba Josphat
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 550 of 2002
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant confirmed subject to the specified distribution.
- Legal Topics
- Succession, Distribution of Estate, Intestate Inheritance, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charity Wanjuki Ndambi
Applicant
Jane Rwamba Josphat
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the proposed distribution of the deceased's estate is equitable among the beneficiaries.
- 2 Whether the widows of the deceased son Josphat are entitled to equal shares of Plot No. 6231.
- 3 Whether the prior allocation of land to the deceased son Josephat should be considered under Section 42 of the Law of Succession Act.
Ratio Decidendi
The court found that the deceased had, during his lifetime, allocated Plot No. 6231 (measuring 0.10 hectares) to his son Josephat, as evidenced by the consent of the Land Control Board. In accordance with Section 42 of the Law of Succession Act, this prior allocation must be considered in the final distribution. Therefore, Josephat's widows are entitled to a total of 0.15 hectares (0.10 ha from Plot No. 6231 and 0.05 ha from Plot No. 6232), to be shared equally between them, thereby equalizing their share with those of the other sons. The remaining portion of Plot No. 6232 (0.15 ha) is to be retained by the administrator for estate administration expenses. The inclusion of Cyrus Njagi...
Court Disposition
Grant confirmed subject to the specified distribution.
Orders
- The grant is confirmed as per the judgment.
- Plot No. 6231 (0.10 ha) to be shared equally by the two widows of Josephat.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU Succession Cause 550 of 2002
IN THE MATTER OF THE ESTATE OF NDAMBI MWARARI (DECEASED)
CHARITY WANJUKI NDAMBI………………………………...PETITIONER
VERSUS
JANE RWAMBA JOSPHAT…………………………………..OBJECTOR
JUDGMENT
Application dated 22/6/2004 the Administrator seeks confirmation of her grant issued to her on 22/6/2001 to enable her to distribute the estate. The identity of the surviving children of deceased are listed as seven. One Cyrus Njagi Kinywa listed as eighth son has been removed from that list after it was found that he was an outsider who is said to have financially helped the administration included in the list are two wives of the deceased’s son Josphat Nthiga Ndambi now deceased.
The administrator proposes to distribute to the two widows one of the two plotsNo. Gaturi/Nembure/6231to share equality. These women have 7 children between them.
The other asset of the deceased is PlotNo. Gaturi/Nembure/6232 to be shared in certain proportions by the 8 sons and the administrator. To the application objection was taken byJANE RWAMBA JOSEPHAT one of the widows of the deceased son. She complaint that she was not consulted at the time of discussing on the distribution of the assets and that the estate has been distributed unequally and that a person not entitled to inherit has been included on the distribution (namely Cyrus Njage Kinyua) he has already been removed. That deceased son Josephat has been allotted a smaller portion than sons.
Evidence was taken from both sides. The objector stated that she resides in Mwea where she works. On her first objection this is conceded by the Administrator and therefore the 0. 20 Ha is left over unallocated she confirmed that her father in law had subdivided his land before he died but she did not know for what purpose. She claimed a portion measuring 0. 090 hectare and suggested that her Co-wife should get a similar portion of the land. According to the record plot No. 6231 is measuring 0. 10 ha.
The evidence of the administrator shows that the deceased had started the process of the registration of his son Josephat as proprietor of the plot of the plot No. 6231 which was subdivided from family land. Indeed the land control Board had given consent as shown by exhibits 1 & 2 on 14. 2.1990.
Considering the proposal of distribution it appears all sons are allocated 0. 15 ha out of plot No. 6232 and the mother (administrator) similar portion (0. 15 Ha) Plot No. 6231 is measuring 0. 10 Ha Section 42 law of Succession Act provides that gifts given or property settled to a beneficiary a child or grandchild shall be taken into account determining distribution of the net intestate estate, finally accruing to the beneficiary. In this case I find there is evidence that the deceased had in his lifetime allocated a share of his land to his son Josephat being plot No. 6231 which measures 0. 10 hectare. This is to be taken into account in determining the final inheritance by that son now deceased.
Therefore the inheritance of Josephat is the Plot No. 6231 plus another portion out of plot No. 6232 measuring 0. 05 Ha. to equalize with other sons. The widows of the deceased son shall therefore take 0. 15 Ha in total to be shared equally among them. There will be remaining 0. 15 Ha out of plot No. 6232. This piece of land shall remain with the administrator out of which she shall convert into money to meet the expenses of administration of estate.
The grant is therefore confirmed subject to the distribution as above.
Orders accordingly. Certificate of confirmation is issued.
Dated this 30th May, 2006.
J. N. KHAMINWA
JUDGE
30/5/2006
Khaminwa –Judge
Njue Clerk
Mr. Gitonga -Present
Objector and petitioner – Present
Ruling read in their presence.
J .N. KHAMINWA
JUDGE