[2011] KEHC 3804 (KLR)
The court found that the main dispute was over the distribution of the estate, particularly L.R. No. Tetu/Ihururu/101, between the deceased's widow and son on one side and the deceased's mother on the other. The court held that the widow, as the deceased's spouse, takes preference in administration and distribution...
Source-derived case information.
- Citation
- [2011] KEHC 3804 (KLR)
- Parties
- Petitioner: Gladys Wambui Kariamburi; Respondent: Peris Wairimu Kagumba; Respondent: Humprey Kagumba
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 598 of 2006
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant confirmed with modification to provide petitioner a life interest in 2 acres of L.R. No. Tetu/Ihururu/101; otherwise, estate distributed as per protestors' proposal; each party to bear own costs.
- Judges
- JK Sergon
- Legal Topics
- Succession, Distribution of Estate, Customary Law, Life Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Wambui Kariamburi
Petitioner
Peris Wairimu Kagumba
Respondent
Humprey Kagumba
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the deceased's estate should be distributed according to the protestor's or petitioner's proposed mode of distribution.
- 2 Whether the petitioner, as the deceased's mother, is entitled to a share or life interest in the estate under succession law and Kikuyu customary law.
- 3 Whether the deceased's widow and children take precedence over the deceased's mother in the administration and distribution of the estate.
Ratio Decidendi
The court found that the main dispute was over the distribution of the estate, particularly L.R. No. Tetu/Ihururu/101, between the deceased's widow and son on one side and the deceased's mother on the other. The court held that the widow, as the deceased's spouse, takes preference in administration and distribution of the estate. The protestors' mode of distribution, which reflected the deceased's wishes and provided for his children and grandchildren, was largely accepted. However, the court recognized the petitioner's long occupation and use of a portion of the land and her need for security. Therefore, the court ordered that the petitioner be allowed to continue occupying and tilling 2...
Court Disposition
Grant confirmed with modification to provide petitioner a life interest in 2 acres of L.R. No. Tetu/Ihururu/101; otherwise, estate distributed as per protestors' proposal; each party to bear own costs.
Orders
- The grant of letters of administration is confirmed in terms of the affidavit of protest, subject to the petitioner being allowed to occupy and use 2 acres in L.R. No. Tetu/Ihururu/101 as a life interest.
- The remainder of the estate is to be distributed as proposed by the protestors.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 598 OF 2006
IN THE MATTER OF THE ESTATE OFCHRISTOPHER KAGUMBA KARIAMBURI..................DECEASED
AND
GLADYS WAMBUI KARIAMBURI ................................................................................................PETITIONER
Versus
PERIS WAIRIMU KAGUMBA
HUMPREY KAGUMBA...............................................................................................................PROTESTORS
JUDGMENT
The Grant of letters of administration in respect of the estate of Christopher Kagumba Kariamburi, deceased was made to Gladys Wambui Kariamburi, the Petitioner herein, on 17th September 2008. The Petitioner applied for the grant to be confirmed vide the summons for confirmation dated 3rd July 2009. Peris Wairimu Kagumba and Humprey Kagumba the Protestors herein, each filed an affidavit of protest to oppose the summons. Directions were given to have the summons disposed of by affidavit evidence and by written submissions.
I have considered the affidavit evidence plus the written submissions. The Protestors herein are the widow and a son of the deceased while the Petitioner is the deceased’s mother. The assets of the estate are identified as follows:
(i)L.R. No. Tetu/Ihururu/101
(ii)L.R. No. Mugunda/Rurii Block I/Muthangari/77
(iii)Gatuamba/Muhotetu Block 2/II
(iv)Cash in Bank (Cooperative)
In her schedule of distribution, the Petitioner proposed for the aforesaid assets to be distributed as follows:
(i)L.R. No. Tetu/Ihururu/101
- Gladys Wambui Kariamburi - 2. 05 acres
- Peris Wairimu Kagumba - 2. 05 acres
In trust for herself and children namely
Humphrey Kagumba, Daniel Karuga, Kariamburi
Kagumba, Albert Kagumba and Gladys Wambui.
(ii)The other parcels to be registered in the name of Peris Wairimu Kagumba in trust for herself and her aforenamed children. Peris Wairimu Kagumba is of the view that the deceased had shared out the land to his sons grandson during his life time as follows:
(i)L.R. No. Tetu/Ihururu/101 - to be shared equally between:
a. Humprey Karuga
b. Albert Mwangi and
c. James Mbau
(ii) L.R. No. Mugunda/Rurii Block1/Muthangira/77 to be shared equally between:
a. Humprey Karuga and
b. Albert Mwangi
(iii)L.R. No. Gituamba Muhotetu Block 2/II to be shared in equal measure between
a. Daniel Kori.
b. Moses Kariamburi
(iv)Money in Bank to be given to Peris Wairimu Kagumba.
The Protestor also pointed out that the deceased during his lifetime had transferred 10 acres to be excised from L.R. No. Mugunda/Rurii Block 1/Muthangira/77 to Dominic Karuga, Patrick Kagumba and John Muchemi being his grandsons.
A careful consideration of the dispute before this court is basically on the distribution of the estate. It is a contest between the deceased’s widow and son on one hand as against the deceased’s mother. In such a case, the person who takes preference to administer the estate is the deceased’s spouse who in this case is one of the protestors. The dispute appears to be the sharing of the parcel of land known as L.R. No. Tetu/Ihururu/101. It would appear the Protestor did not provide for Petitioner in her schedule of distribution. Basically the deceased’s widow is saying that her mode of distribution is in accordance with the deceased’s wishes. The Petitioner’s main ground is that according to Kikuyu customary law, a wife was not allowed to be registered as the owner of land. She claimed that parcel No. L.R. No. Tetu/Ihururu/101 was registered in the name of the deceased in his capacity as the eldest son of Alexander Kariamburi Kagumba, deceased. She claimed she has been in occupation of the aforesaid land for a long period of time. The Petitioner is of the view that she is not secure if not she is not given a portion because she fears the protestor may render her landless. After anxiously considering the issues in dispute I am inclined to agree with the mode of distribution given by the Protestor save that the Petitioner being the deceased’s mother should be allowed to continue to occupy and till the portion she has been residing on and tilling as a life interest. Consequently the grant is confirmed in terms of the affidavit of protest save that the mode of distribution should be altered to allow the Petitioner occupy and use 2 acres in L.R No. Tetu/Ihururu/101 as a life interest.
I direct each party to meet his or her own costs.
Dated and delivered this 25th day of February 2011.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Ng’ang’a for Protestor and the Petitioner in person.
J.K. SERGON
JUDGE