[2018] KEHC 6506 (KLR)
The court found that Yatta/Ndunguni/616 was registered in the names of both the deceased and the petitioner as tenants in common, not joint tenants. Therefore, the deceased was entitled to half the share (83.31 Ha after deducting the portion sold), which forms part of his estate to be distributed among all...
Source-derived case information.
- Citation
- [2018] KEHC 6506 (KLR)
- Parties
- Applicant: Mueni Nyamai; Respondent: Mutisya Kivaku Nyamai; Respondent: Musangi Nyamai; Respondent: John Katiwa Nyamai; Respondent: Damaris Nyamai; Respondent: Jeremian Nyamai; Respondent: Tom Nyamai; Respondent: Safari Nyamai; Respondent: Charles Mutisya Nyamai
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 205 of 2015
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Grant cancelled and reissued; distribution of land and funds ordered as per court's findings.
- Judges
- LN Mutende
- Legal Topics
- Succession of Estates, Polygamous Estate Distribution, Common Tenancy, Administration of Estates, Trusteeship, Bank Account Distribution
- 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
Mueni Nyamai
Applicant
Mutisya Kivaku Nyamai
Respondent
Musangi Nyamai
Respondent
John Katiwa Nyamai
Respondent
Damaris Nyamai
Respondent
Jeremian Nyamai
Respondent
Tom Nyamai
Respondent
Safari Nyamai
Respondent
Charles Mutisya Nyamai
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the petitioner is entitled to half share of land parcel Yatta/Ndunguni/616 or the whole parcel forms part of the deceased's estate.
- 2 How the funds held in various bank accounts should be distributed among the beneficiaries in a polygamous estate.
- 3 Whether the grant issued to a sole administratrix should be revoked due to the existence of minor beneficiaries.
Ratio Decidendi
The court found that Yatta/Ndunguni/616 was registered in the names of both the deceased and the petitioner as tenants in common, not joint tenants. Therefore, the deceased was entitled to half the share (83.31 Ha after deducting the portion sold), which forms part of his estate to be distributed among all beneficiaries, including the petitioner. The petitioner retains the other half as her property. Regarding funds in various banks, the court applied Section 40 of the Law of Succession Act, directing that the net intestate estate in respect of money be divided among the houses according to the number of children in each house, with surviving wives counted as units, resulting in 19 units...
Court Disposition
Grant cancelled and reissued; distribution of land and funds ordered as per court's findings.
Orders
- The grant issued herein is cancelled. A fresh grant shall issue in the names of Mueni Nyamai and Musangi Nyamai.
- The administratrix of the estate shall file in court a detailed statement of the personal bank accounts held by the deceased prior to his demise within 30 days.
Full Case Text
Judgment text and source record
399 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
SUCCESSION CAUSE NO. 205 OF 2015
IN THE MATTER OF THE ESTATE OFNYAMAI MWANIKIDECEASED)
MUENI NYAMAI………..……………………………………………PETITIONER
VERSUS
MUTISYA KIVAKU NYAMAI
MUSANGI NYAMAI
JOHN KATIWA NYAMAI
DAMARIS NYAMAI
JEREMIAN NYAMAI
TOM NYAMAI
SAFARI NYAMAI
CHARLES MUTISYA NYAMAI…………………………………..PROTESTERS
R U L I N G
1. Nyamai Mwaniki(Deceased) died domiciled in Kitui Kenyaon the 17th February, 2013. Letters of Administration Intestate in respect of his Estate were issued to Mueni Nyamaion the 7thday of January, 2015by Hon. Lesootia Senior Resident Magistratein the Lower Court. It turned out that the Estate of the Deceased which had been indicated as valued at Kshs. 100,000/=was actually valued in millions. As a result the matter was transferred to the High Court for disposal.
2. The Deceased was married to 5 wives, Mueni Nyamai, Musangi Nyamaiwho survived him and Katongu Nyamai, Katilo Nyamai, Kethi Nyamaiwho are deceased. He had several children:
1. Teresia Muthei Nyumu.
2. Fredrick Mutio Nyamai.
3. Jackline Wanza Nyamai.
4. David Nganga Nyamai.
5. William Kieu Nyamai.
6. Peter Nyamai.
7. Lydia Nyamai.
8. Kaindi Mbuna.
9. Mutisya Kivaku Nyamai.
10. Jeremiah Nyamai.
11. Damaris Nyamai.
12. Nthoki Nyamai.
13. Safari Nyamai.
14. Charles Mutisya Nyamai.
15. Nguli Nyamai.
16. Rael Nyamai.
17. Mulwa Nyamai.
3. His Estate comprises of the following assets:
a) Yatta/Ndunguni/2126.
b) Yatta/Ndunguni/476.
c) Yatta/Ndunguni/1221.
d) Yatta/Ndunguni/1219.
e) Yatta/Ndunguni/1220.
f) Yatta/Ndunguni/1223.
g) Yatta/Ndunguni/1218.
h) Yatta/Ndunguni/2127.
i) Yatta/Ndunguni/2124.
j) Yatta/Ndunguni/1022.
k) Yatta/Ndunguni/1222.
l) Yatta/Ndunguni/616.
m) Yatta/Ndunguni/2384.
n) Yatta/Ndunguni/542.
o) Yatta/Ndunguni/854.
p) Mandongoi Adjudication Section No. 1779.
q) Syomunyu Adjudication Section 1204.
r) Unserveyed Land at Ilengi Village in Kamutei Location.
s) Plot No. 16 Kaw’ongo.
t) Plot No. 22 Kaw’ongo.
u) Plot No. 26 Nthongoni.
v) Funds Held At Kenya Commercial Bank A/C No. 1114478865.
w) Funds Held At Standard Chartered Bank A/C No. 01/2/01/41225/00/2.
x) Funds Held At Post Bank Kitui A/C No. KKIK 27904-9.
y) Funds Held At K-Rep Bank Fixed A/C No. 009.
z) Funds Held At K-Rep Bank Savings A/C No. 0703.
And liabilities:
a) A portion of Yatta/Ndunguni/616 measuring 1. 78 Ha sold to PeninahKatongu King’uyu.
b) A portion of Kanyangi/Mandongoi/1779 measuring 2. 381 Ha sold to Mwanzi Munuve.
c) Yatta/Ndunguni/2126 (whole) sold to James Mutua Mutio.
d) Yatta/Ndunguni/542 (whole) sold to James Mutua Mutio.
e) Yatta/Ndunguni/854 (whole) sold to Africa Wood Grow Limited.
f) Kshs. 250,000 legal fees and costs for the Succession Case No. 205 of 2015.
4. An application for Confirmation of the Grant was filed by the Administratix of the Estate. In the affidavit in support of the application she identified the entitlement of all beneficiaries as follows:
a) Yatta/Ndunguni/2126 to James Mutua Mutio – Whole.
b) Yatta/Ndunguni/476.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
c) Yatta/Ndunguni/1221.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
d) Yatta/Ndunguni/1219.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
e) Yatta/Ndunguni/1220.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
f) Yatta/Ndunguni/1223.
i)MueniNyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
g) Yatta/Ndunguni/1218.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
h) Yatta/Ndunguni/2127.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
i) Yatta/Ndunguni/2124.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
j) Yatta/Ndunguni/1022.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
k) Yatta/Ndunguni/1222.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
l) Yatta/Ndunguni/616.
i) Mueni Nyamai –Half Share (½) – 84. 20 Ha
ii)Mbithi Nyamai.
iii) David Nganga Nyamai.84. 20 Ha to hold in
iv) Mutisya Kivaku Nyamai.equal shares in trust
v) Fredrick Mutiso Nyamai for other family members.
vi) Musangi Nyamai.
vii) Peninah Katongu Kinguyu
m) Yatta/Ndunguni/542 to James Mutua Mutio.
n) Yatta/Ndunguni/854 to Africa Wood Grow Limited.
o) Mandongoi Adjudication Section No. 1779.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
vi) Mwanthi Munuve
p) Syomunyu Adjudication Section 1204.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
q) Unserveyed Land at Ilengi Village in Kamutei Location.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
r) Plot No. 16 Kaw’ongo.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
s) Plot No. 22 Kaw’ongo.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
t) Plot No. 26 Nthongoni.
i)Mueni Nyamai.
ii) Mbithi Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for other family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
u) Funds Held At Kenya Commercial Bank A/C No. 1114478865.
i)Mueni Nyamai. To hold their shares in
ii) Mbithi Nyamai. trust for other family
iii) David Nganga Nyamai.members.
iv) Mutisya Kivaku Nyamai.
v) Musangi Nyamai.
v) Funds Held At Standard Chartered Bank A/C No. 01/2/01/41225/00/2.
i)Mueni Nyamai. To hold their shares in
ii) Mbithi Nyamai. trust for other family
iii) David Nganga Nyamai.members.
iv) Mutisya Kivaku Nyamai.
v) Musangi Nyamai.
w) Funds Held At Post Bank Kitui A/C No. KKIK 27904-9.
i)Mueni Nyamai. To hold their shares in
ii) Mbithi Nyamai. trust for other family
iii) David Nganga Nyamai.members.
iv) Mutisya Kivaku Nyamai.
v) Musangi Nyamai.
x) Funds Held At K-Rep Bank Fixed A/C No. 009.
i)Mueni Nyamai. To hold their shares in
ii) Mbithi Nyamai. trust for other family
iii) David Nganga Nyamai.members.
iv) Mutisya Kivaku Nyamai.
v) Musangi Nyamai.
y) Funds Held At K-Rep Bank Savings A/C No. 0703.
i)Mueni Nyamai. To hold their shares in
ii) Mbithi Nyamai. trust for other family
iii) David Nganga Nyamai.members.
iv) Mutisya Kivaku Nyamai.
v) Musangi Nyamai.
5. Subsequently, Mutisya Kavaku Nyamaifiled a protest against the proposed mode of distribution of the Estate and made a proposal thus:
a) Yatta/Ndunguni/2126 to James Mutua Mutio – Whole.
b) Yatta/Ndunguni/476.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
c) Yatta/Ndunguni/1221.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
d) Yatta/Ndunguni/1219.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
e) Yatta/Ndunguni/1220.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
f) Yatta/Ndunguni/1223.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
g) Yatta/Ndunguni/1218.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
h) Yatta/Ndunguni/2127.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
i) Yatta/Ndunguni/2124.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
j) Yatta/Ndunguni/1022.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
k) Yatta/Ndunguni/1222.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
l) Yatta/Ndunguni/616.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
vi) Peninah Katongu Kinguyu
m) Yatta/Ndunguni/542 to James Mutua Mutio – Whole.
n) Yatta/Ndunguni/854 to Africa Wood Grow Limited – Whole.
o) Mandongoi Adjudication Section No. 1779.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
vi) Mwanthi Munuve
p) Syomunyu Adjudication Section 1204.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
q) Unserveyed Land at Ilengi Village in Kamutei Location.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
r) Plot No. 16 Kaw’ongo.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
s) Plot No. 22 Kaw’ongo.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
t) Plot No. 26 Nthongoni.
i)Mbithi Nyamai.
ii) Mueni Nyamai. To hold in equal shares
iii) David Nganga Nyamai.in trust for the family
iv) Mutisya Kivaku Nyamai.members.
v) Musangi Nyamai.
u) Funds Held At Kenya Commercial Bank A/C No. 1114478865.
i)Mbithi Nyamai. To hold their shares in
ii) Mueni Nyamai. trust for other family
iii) David Nganga Nyamai.members according to
iv) Mutisya Kivaku Nyamai.the number of
v) Musangi Nyamai. dependants.
v) Funds Held At Standard Chartered Bank A/C No. 01/2/01/41225/00/2.
i)Mbithi Nyamai. To hold their shares in
ii) Mueni Nyamai. trust for other family
iii) David Nganga Nyamai.members according to
iv) Mutisya Kivaku Nyamai.the number of
v) Musangi Nyamai. dependants in the family
w) Funds Held At Post Bank Kitui A/C No. KKIK 27904-9.
i)Mbithi Nyamai. To hold their shares in
ii) Mueni Nyamai. trust for other family
iii) David Nganga Nyamai.members according to
iv) Mutisya Kivaku Nyamai.the number of
v) Musangi Nyamai. dependants in the family
x) Funds Held At K-Rep Bank Fixed A/C No. 009.
i)Mbithi Nyamai. To hold their shares in
ii) Mueni Nyamai. trust for other family
iii) David Nganga Nyamai.members according to
iv) Mutisya Kivaku Nyamai.the number of
v) Musangi Nyamai. dependants in the family
y) Funds Held At K-Rep Bank Savings A/C No. 0703.
i)Mbithi Nyamai. To hold their shares in
ii) Mueni Nyamai. trust for other family
iii) David Nganga Nyamai.members according to
iv) Mutisya Kivaku Nyamai.the number of
v) Musangi Nyamai. dependants in the family
6. All parties consented to the application being disposed off by way of viva voceevidence. And further, that each household be represented by one person for purposes of cross examination. Consequently, the representation was a follows:
1st household – Mbithi Nyamai.
2nd household – Petitioner.
3rd household – David Nganga Nyamai.
4th household – Mutisya Kivoku Nyamai.
5th household – Musangi Nyamai.
7. Basically the family was in agreement of the distribution of all properties as proposed except;
(1) Land Title Yatta/Ndunguni/616 measuring 168. 40 Hectares.
(2) Funds held in various banks.
8. At the hearing, the Petitioner/Administratix of the Estate stated that during adjudication Land Parcel Yatta/Ndunguni/616was registered in common having acquired it jointly with the Deceased. That she was entitled to half the share. She asked the Court to find that she was entitled to half the share while the remaining share that belonged to the Estate of the Deceased could be shared amongst all the beneficiaries of the Estate, her inclusive. That they moved from the ancestral home in Ndunguniand acquired the property which was shared between her and the Deceased. Regarding funds that were left in various financial institutions she stated that they could be shared equally amongst all households.
9. Regarding liabilities that were introduced in the matter by an Amended P&A 5, she acknowledged the fact that Peninah Katongu King’uyubought a portion of land being part of Yatta/Ndunguni/616measuring 1. 78 Ha, James Mutiobought Yatta/Ndunguni/2126and 542then Africa Wood Grow Ltdbought Yatta/Ndunguni/854. She denied knowing Mwanzi Munuvewho was stated to have purchased land parcel Kanyangi/Mandongi/1779measuring 2. 381though this was her averment in her affidavit.
10. The Petitioner called witnesses. Fredrick Mutio,her son who stated that Yatta/Ndunguni/2124had a typographical error as it ought to be 1224and Yatta/Ndunguni/2384does not exist. That half of the parcel Yatta/Ndunguni/616is what is part of the Estate of the Deceased.
11. The Protestor, Mutisya Kivakublamed the Administratix of the Estate and her son for intermeddling with the Estate of the Deceased. He acknowledged people who had purchased land from the Deceased as James Mutio, Peninahand Africa Wood Grow Limited.He argued that the whole of Yatta/Ndunguni/616 belonged to the Deceased, his father. It was after his demise that they saw a title deed bearing the two (2) names. He prayed that the parcel of land in dispute be distributed amongst all houses and the funds held in banks shared amongst all beneficiaries equally. On cross examination it turned out that some of the beneficiaries were minors namely:
· Nguli Nyamai.
· Laeli Nyamai.
· Mulwa Nyamai.
Musengi Nyamai’schildren.
12. Mbithi Nyamaiconcurred with the Protester.
13. David Nganga Nyamaiopposed the sharing of the land in dispute between the Deceased and Petitioner. Regarding funds in various banks he proposed that it be shared amongst each household then the same be divided amongst children in each household. Musangi Nyamaithe Deceased’s 5th wife stated that she came to learn that the land in contention was registered in the names of the Deceased and the Administratix of the Estate after his demise. She proposed that the money at the bank be shared equally amongst the children.
14. Peter Matheka Wasiniia Chairman of Muini Clanto which the Deceased belonged stated that they went to subdivide the land only to find that it was registered in two (2) names.
15. Jeremiah Nyamaison of Musangistated that they had no knowledge that the land was in the name of the Deceased and Mueni.He proposed that the money in bank be distributed amongst all of them.
16. Regarding legal fees in the sum of Kshs. 250,000/=indicated as a liability, the Protester stated that the Deceased had no debt in legal fees. The Petitioner on the other hand left it to the Court to decide.
17. Both parties filed written submissions that I have taken into consideration.
18. A Search Certificate for Title No. Yatta/Ndunguni/616establishes that the parcel measuring 168. 40 Hais registered in the names of Nyamai Mwanikiand Mueni Nyamai.The title deed in respect of the parcel of land was issued in 2007.
19. Section 91(5)of the Land Registration Act (Act)provides thus:
“If any land, lease or charge is owned in common, each tenant shall be entitled toan undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate.”
20. At the point of acquiring the land the Deceased had other wives but chose to have the land registered in his and the Petitioner’s names. The two (2) individuals held the land on individual, undivided ownership interest in the property. Each one of them had the right of his/her specific ownership interest. There is no indication that they were joint tenants which would mean that the share owned by the Deceased should go to the Petitioner as the surviving tenant. What has been demonstrated is that all survivors of the Deceased lived and worked on that particular land. Therefore the property was owned by the Deceased and the Petitioner in common. As a result his share in the property passes to his heirs.
21. With this in mind, I find that the Deceased was entitled to half share of Land Parcel No. Yatta/Ndunguni/616while the Petitioner was entitled to the remaining share. The property measures 168. 40 Ha.It is admitted that part of the parcel measuring 1. 78 Hawas sold to Peninah Katongu King’uyoduring the lifetime of the Deceased leaving 166. 62 Ha.The share of the Deceased stands at 83. 31 Ha.All his heirs, the Petitioner inclusive are entitled to the share of the Deceased.
22. In the premises the 83. 31 Habeing half share of Parcel of Land Yatta/Ndunguni/616shall be held by the persons proposed:
1. Mueni Nyamai.
2. Mbithi Nyamai.
3. David Nganga Nyamai.
4. Mutisya Kivaku Nyamai.
5. Musangi Nyamai.
To hold in trust for other family members.
Peninah Katongu King’uyowill be entitled to her portion measuring 1. 78 Ha.
23. Regarding money held at the bank, the Deceased was polygamous. I am therefore guided by Section 40of the Law of Succession Actthat provides that:
“(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.
(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. ”
What this entails is that the net intestate Estate of the Deceased regarding the money left in various financial institutions shall be divided among the houses according to the number of children in each house with widows being added as units. In the instant case the Estate in respect of money will be divided into 19 unitswhich will enable each member of the family to get his/her entitlement.
24. It was disclosed that, some of the beneficiaries are minors. The grant ought to have been made to the Petitioner jointly with another person as a continuing trust arose. The grant was however made to one individual contrary to the Law (See Section 58 of the Law of Succession Act).This would have called for the revocation of the grant but since the parties are desirous to have the Estate distributed I will exercise my discretion pursuant to Rule 73of the Probate and Administration Rules and direct that the mother to the minors be considered to be the second Administratix of the Estate of the Deceased.
25. It is important to interrogate what exactly the Deceased held in various banks prior to his demise that will be shared amongst the beneficiaries of his Estate. I say so because the Administratix was obligated to account for the Estate of the Deceased. This was well put in the case of The Estate of Wainaina Waititu (Deceased) (2005) eKLRthus:
“Section 79 of the Law of Succession Act vests the property of the deceased in the Administrators. That constitutes them legal owners of the property, yet they hold such property not for themselves, but as trustees for all those others interested in it, be they heirs or creditors. They therefore stand in a fiduciary position with regard to the property and in relation to the beneficiaries. As trustees they are accountable to the persons who are ultimately entitled to assets upon distribution….”
26. In the premises I make orders as follows:
(i) The grant issued herein be and is hereby cancelled. A fresh one shall issue in the names of:
(a) Mueni Nyamai.
(b) Musangi Nyamai.
(ii) The Administratix of the Estate shall file in Court a detailed statement of the personal bank accounts stipulated held by the Deceased prior to his demise on the 17th February, 2013within 30 dayshereof.
(iii) Mention on the 12th June, 2018for further orders.
(iv) Costs shall be in the cause.
27. It is so ordered.
Dated, Signedand Deliveredat Kituithis 19thday of April,2018.
L. N. MUTENDE
JUDGE