[2004] KEHC 21 (KLR)
The court found that, in accordance with Section 40 of the Law of Succession Act, the estate of a polygamous deceased should be divided so that each widow receives a portion for herself and her house. Given the ongoing disputes and lack of agreement between the two widows, the court determined that partitioning the...
Source-derived case information.
- Citation
- [2004] KEHC 21 (KLR)
- Parties
- Applicant: Grace Wangai Amasha; Respondent: Gladys Wandiri Ndwiga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Application 563 of 2006
- Procedural Posture
- Succession Application / Ruling on Application for Partition of Land
- Outcome
- Application for partition allowed.
- Legal Topics
- Succession of Polygamous Estates, Partition of Land, Distribution of Estate to Widows
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wangai Amasha
Applicant
Gladys Wandiri Ndwiga
Respondent
Procedural Posture
Succession Application / Ruling on Application for Partition of Land
Legal Issues
- 1 Whether the land registered in the names of both widows should be partitioned to allow each to hold a separate title.
- 2 How the estate of a polygamous deceased should be distributed among the widows under the Succession Act.
Ratio Decidendi
The court found that, in accordance with Section 40 of the Law of Succession Act, the estate of a polygamous deceased should be divided so that each widow receives a portion for herself and her house. Given the ongoing disputes and lack of agreement between the two widows, the court determined that partitioning the land and issuing separate titles would promote peace and allow each party to enjoy her share. The Registered Land Act supports the partition of registered land among co-proprietors. The court therefore ordered the Land Registrar to subdivide the land equally, ensuring both parties have access to water, and to issue separate titles accordingly.
Court Disposition
Application for partition allowed.
Orders
- Land Registrar to subdivide land Mbeti/Gachururi/933 equally between the parties and issue separate titles.
- Registrar to ensure both pieces of land have access to water.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Succession 563 of 2006
IN THE MATTER OF THE ESTATE OF AMASHA NDWIGA KIRAO…DSD
AND
GRACE WANGAI AMASHA………...……………………..APPLICANT
VERSUS
GLADYS WANDIRI NDWIGA………………………….RESPONDENT
RULING
Application dated 5/6/2007 seeks orders in respect of a piece of land Mbeti/Gachururi/933. This land is registered in the names of the two parties as proprietors. The two parties are widows of deceased husband and they acquired land by succeeding him in succession case No. 123 of 1989. They are no longer agreeable and dispute has arisen as to access to the river and other issues.
Section 40 of Succession Act Cap 160 directs that where a deceased is polygamous and has left more than one wife, the estate shall be divided and each wife shall take a portion for herself and her house. The property into her house shall be distributed in accordance to section 35 thereof. The Registered land Act makes provisions provision for the partition of interests in registered land.
It is my finding that for the peace of these widows the land ought to be partitioned and each to hold own title.
I order that Land Registrar to subdivide the land equally and to issue separate title to each party. The registrar shall take into consideration the demands of access to water by both pieces of land.
It is so ordered. No order as to costs.
Dated this 24th April, 2004.
J. N. KHAMINWA
JUDGE
24/4/2008
Khaminwa – Judge
Mr. Mogusu HB
Mr. Nthiga HB
Read in open court.
J. N. KHAMINWA
JUDGE