[2008] KEHC 3626 (KLR)
The High Court found that the Trial Magistrate erred by dividing the estate into two equal portions as if there were only two houses, without regard to the number of children in each house as required by Section 40 of the Succession Act. The appellate court held that the law mandates distribution based on the number...
Source-derived case information.
- Citation
- [2008] KEHC 3626 (KLR)
- Parties
- Appellant: Esther Karuana Mununo; Respondent: Jeremiah Kinya Mununo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 46 of 2002
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- Appeal allowed. Judgment of the Trial Magistrate set aside. Distribution to be in accordance with Section 40 of the Succession Act.
- Legal Topics
- Succession of Estates, Distribution of Property, Interpretation of Section 40, Polygamous Estates, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Karuana Mununo
Appellant
Jeremiah Kinya Mununo
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the Trial Magistrate erred in distributing the deceased's estate contrary to Section 40 of the Succession Act.
- 2 Whether there was sufficient evidence of the deceased's wishes regarding distribution of his estate.
- 3 Whether the deceased was correctly classified as a polygamous man under the law.
Ratio Decidendi
The High Court found that the Trial Magistrate erred by dividing the estate into two equal portions as if there were only two houses, without regard to the number of children in each house as required by Section 40 of the Succession Act. The appellate court held that the law mandates distribution based on the number of children per house, with the surviving widow counted as an additional share. There was insufficient evidence of the deceased's wishes to justify deviation from the statutory scheme. The deceased was correctly classified as polygamous, but the distribution must reflect the actual family structure. The appeal was allowed, the lower court's judgment set aside, and the estate...
Court Disposition
Appeal allowed. Judgment of the Trial Magistrate set aside. Distribution to be in accordance with Section 40 of the Succession Act.
Orders
- The appeal is allowed.
- The judgment of the Trial Magistrate is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 46 of 2002
ESTHER KARUANA MUNUNO…………………………….APPELLANT
VERSUS
JEREMIAH KINYA MUNUNO………………..………......RESPONDENT
JUDGMENT ON APPEAL
This appeal arises from Succession proceedings under provision of Succession Act Cap. 160 Laws of Kenya. The grounds of appeal are set out in the Memorandum of Appeal numbering 5. The major complaint is that the learned Trial Magistrate erred in law and fact in sharing out land parcel Mutira/Kathere/22 unfairly and inequitably, the court erred in finding the deceased a polygamous man at his death and there was contradictory evidence of witnesses and that the distribution was against the wishes of deceased. The record shows that initially the parties opted for arbitration by Baricho District Officer, and elders. Arbitration was filed and read to the parties and right of filing objections given for 30 days. An application was filed dated 18/4/2000 for setting aside arbitration award by the petitioner which was allowed on 11/7/2000 and matter heard in open court.
The Judgment of Trial court was that the land be divided into two equal portions and each party to take one half portions. The petitioner (widow) thereafter filed this appeal.
I have perused the record and evaluated the evidence as I am entitled to do. It is my finding that as the deceased died in 1978 before coming into force of the Succession Act Cap.160 under Section 2 (2) therefore the distribution of his estate “shall commence or proceed so far as possible in accordance with this Act. It is to be noted that these proceedings commenced in 1995 under these rules and therefore the administration of this estate commenced and proceeded under the Act”.
Also it is my finding that there is no sufficient evidence of the alleged wishes of the deceased. There was nothing in writing, he had not taken any steps to subdivide his land, before his death. The oral statements made are not corroborated these are not adequate to warrant a finding that he left behind instructions or wishes as to how his assets are to be distributed. However his personal custody laws to be considered.
Regarding the evidence of polygamous status of deceased the Trial Magistrate was correct in his interpretation. It is clear he married second wife after death of his first wife. And then after taking the petitioner to wife he did not contract any other marriage. He was a polygamous man in terms of Section 40 thereof. The substantial evidence which is not contradicted is that the deceased was survived by 8 sons and one wife he did not contract any other marriage. He was a polygamous man in terms of Section 40 thereof. The substantial evidence which is not contradicted is that the deceased was survived by 8 sons and one wife. His land is said to be 4 acres and the dispute was as to the division of the land among the 8 sons and widow. There is not contradictory evidence in the matter and whatever may be there it was correct to disregard the same. Now the Trial Magistrate ordered distribution into half portion as if the deceased had 2 homes. However that is the correct position. The objection is that the house with 7 sons shall take same portion as house with one child
This appears the provisions of Section 40 provides that the estate shall be divided among the houses according to the number of children in each house but also adding any wife surviving him as additional in it. The law does not state that the estate be divided into equal shares.
After evaluating the evidence, I find the Trial Magistrate erred and I allow this appeal and order that the distribution be in accordance with provisions of Section 40 so that each house shall inherit according to the number of children surviving widow with her 7 sons shall take 8 portions of the land and the deceased widows house shall take one portion. The Judgment of Trial Magistrate is set aside.
No order is made as to costs.
Dated this 30th January, 2008.
J. N. KHAMINWA
JUDGE
30/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Chomba for Respondent
Read in open court.
J. N. KHAMINWA
JUDGE