[2024] KEHC 7102 (KLR)
The court held that all children of the deceased, regardless of gender, are entitled to equal shares in the estate under Section 38 of the Law of Succession Act. The applicant's proposal to allocate his sisters only an acre each, while taking a larger share for himself, was found to be discriminatory and contrary to...
Source-derived case information.
- Citation
- [2024] KEHC 7102 (KLR)
- Parties
- Applicant: Iruki M. Phineus; Respondent: Doreen Kagwiria Iruki; Respondent: Caroline Gakii Iruki; Respondent: Naftali Mwiti Iruki; Respondent: Linus Thuranira Iruki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 15 of 1994
- Procedural Posture
- Succession Cause / Ruling on Substitution of Deceased Administrator and Rectification of Grant
- Outcome
- Application allowed in part; applicant and one daughter appointed as administrators; grant rectified; estate to be distributed equally among all children.
- Judges
- TW Cherere
- Legal Topics
- Intestate Succession, Administration of Estates, Equal Distribution, Gender Discrimination, Rectification of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iruki M. Phineus
Applicant
Doreen Kagwiria Iruki
Respondent
Caroline Gakii Iruki
Respondent
Naftali Mwiti Iruki
Respondent
Linus Thuranira Iruki
Respondent
Procedural Posture
Succession Cause / Ruling on Substitution of Deceased Administrator and Rectification of Grant
Legal Issues
- 1 Whether the applicant should be substituted as administrator following the death of the previous administrator.
- 2 Whether the grant should be rectified to include newly discovered assets of the deceased.
- 3 Whether the distribution proposal discriminates against female heirs contrary to the law.
Ratio Decidendi
The court held that all children of the deceased, regardless of gender, are entitled to equal shares in the estate under Section 38 of the Law of Succession Act. The applicant's proposal to allocate his sisters only an acre each, while taking a larger share for himself, was found to be discriminatory and contrary to both statutory and constitutional provisions. The court emphasized that there was no evidence that the daughters had renounced their rights, and thus, no justification existed for denying them equal inheritance. The court further clarified that assets belonging to the late administrator, Colleta Nthama Iruki, should be dealt with in her own succession cause. The grant was...
Court Disposition
Application allowed in part; applicant and one daughter appointed as administrators; grant rectified; estate to be distributed equally among all children.
Orders
- Iruki M. Phineus and Doreen Kagwiria Iruki are appointed as administrators of the estate.
- Letters of administration shall issue accordingly.
Full Case Text
Judgment text and source record
25 paragraphs
In re Estate of Gervasio Iruki M’thiringi (Deceased) (Succession Cause 15 of 1994) [2024] KEHC 7102 (KLR) (13 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7102 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 15 of 1994
TW Cherere, J
June 13, 2024
IN THE MATTER OF THE ESTATE OF GERVASIO IRUKI M’THIRINGI (DECEASED) AND IN AN APPLICATION FOR SUBSTITUTION OF DECEASED ADMINISTRATOR AND RECTIFICATION OF GRANT
In the matter of
Iruki M. Phineus
Applicant
Ruling
1. The estate in this matter was distributed in favour of Colleta Nthama Iruki vide a Certificate of confirmation of grant issued on 02nd September,1994.
2. That Colleta Nthama Iruki has since died on 05th March, 2015 as has been demonstrated by a certificate of death dated 02nd July, 2015.
3. By summons dated 13th December, 2023, Applicant who is son of deceased and Colleta Nthama Iruki prays he be allowed to take over the administration of his father’s estate on behalf of his deceased mother.
4. Applicant further avers that he had discovered that his father owned additional assets that were not distributed in this cause. The assets which are supported by copies of certificates of search in the name of the decaed are as follows:1. Tigania/Antuamburi/40642. Tigania/Antuamburi/41163. Tigania/Antuamburi/45944. Tigania/Antuamburi/61125. Tigania/Antuamburi/61686. Tigania/Antuamburi/79397. Tigania/Antuamburi/7944
5. No evidence was tendered to demonstrate that Akaiga Mikinduri/6085, Amwath/maua No. 4807 and 5422 and Kula Pesa Isiolo Plot No. BCR BO.B-14 belong to the deceased.
6. Tigania/Akaiga/5085 belongs to Colleta Nthama Iruki and ought to be distributed in her estate in Meru CM Succession No. E071 OF 2021.
7. The record demonstrates that of the numerous assets available for distribution, Applicant proposes to give Doreen Kagwiria Iruki and Caroline Gakii Iruki who are his sisters who and also deceased’s daughters only an acre each.
8. Section 38 of the Law of Succession Act (the Act) which is applicable to this Cause provides that:“Where an intestate has left a surviving child or children but no spouse the net estate shall subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children.”
9. Objectors are daughters of the deceased and therefore heirs of his estate as a matter of right.
10. There being no evidence that the daughters of the deceased have renounced their equal right to their father’s estate, there cannot be any justification for discriminating and denying them their rightful inheritance.
11. It will be pretentious for any person to say or act ignorantly of the fact that discrimination of any person on the basis of gender or status is prohibited under the Constitution of Kenya, 2010, because; other than the existence of abundantly clear provisions of the Constitution, the chain of judicial decisions on discrimination on the basis of gender or status are equally clear. (See Rono v Rono & Another, 2008 1 KLR (G & F) page 803; Douglas Njuguna Muigai v John Bosco Maina Kariuki & another [2014] eKLR; Mwongera Mugambi Rinturi& another v Josphine Kaarika & 2 others [2015] eKLR; Stephen Gitonga M’murithi v Faith Ngira Murithi [2015] eKLR and Joyce Kabiti M’ Turuchu v David M’ Ntiritu Kiambi [2016] eKLR).
12. From the foregoing, the summons dated 03rd July, 2023 and filed on 06th July, 2023 is determined in the following terms;1. Iruki M. Phineus and Doreen Kagwiria Iruki are appointed as administrators of the estate2. Letters of administration shall issue accordingly3. The following assets and any other asset of the deceased and other assets that become available for distribution shall be distributed in equal shares to their children Doreen Kagwiria Iruki, Caroline Gakii Iruki, Iruki M. Phineus, Naftali Mwiti Iruki and Linus Thuranira Irukii.Tigania/Antuamburi/4064ii.Tigania/Antuamburi/4116iii.Tigania/Antuamburi/4594iv.Tigania/Antuamburi/6112v.Tigania/Antuamburi/6168vi.Tigania/Antuamburi/7939(vii)Tigania/Antuamburi/79444. Certificate of Confirmation of Grant dated 02nd September, 1994 shall be rectified accordingly5. Mention on 03rd October, 2024 to confirm transmission
DELIVERED AT MERU THIS 13TH DAY OF JUNE 2024WAMAE. T. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant - Ms. Kaimenyi for Kithome & Mutinda & Co. Advocates