[2015] KEHC 2468 (KLR)
The court found that the deceased died intestate, survived by ten children and no spouse. Section 38 of the Law of Succession Act mandates equal distribution of the net intestate estate among all surviving children, regardless of gender or marital status. The majority of the children agreed to this mode of...
Source-derived case information.
- Citation
- [2015] KEHC 2468 (KLR)
- Parties
- Applicant: Surviving children of Josephat Kameri Nganga; Respondent: Surviving children of Josephat Kameri Nganga (objectors)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 634 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant
- Outcome
- grant confirmed; estate to be distributed equally among all ten children; costs in the cause.
- Judges
- DN Musyoka
- Legal Topics
- Intestate Succession, Distribution of Estate, Equal Sharing Among Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Surviving children of Josephat Kameri Nganga
Applicant
Surviving children of Josephat Kameri Nganga (objectors)
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally among all surviving children as per Section 38 of the Law of Succession Act.
- 2 Whether the court should confirm the grant in accordance with the agreement reached by the majority of the children.
Ratio Decidendi
The court found that the deceased died intestate, survived by ten children and no spouse. Section 38 of the Law of Succession Act mandates equal distribution of the net intestate estate among all surviving children, regardless of gender or marital status. The majority of the children agreed to this mode of distribution in a family meeting, and the minutes of this meeting were presented to the court. There was no substantive legal objection to equal distribution, and the court found no basis to depart from the statutory provision or the family's agreement. Accordingly, the court confirmed the grant and ordered equal distribution of the estate among all ten children.
Court Disposition
grant confirmed; estate to be distributed equally among all ten children; costs in the cause.
Orders
- The grant dated 21st March 2013 is confirmed.
- The estate of the deceased shall be distributed equally among the ten surviving children as per the minutes of 12th October 2014.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 634 OF 1993
IN THE MATTER OF THE ESTATE OF JOSEPHAT KAMERI NGANGA alias JOSPHAT KAMERI NGANGA alias JOSEPHAT KAMIRI NGANGA (DECEASED)
RULING
The application dated 7th November 20123 is for confirmation of the grant made in the matter on 21st March 2013.
When the matter came up for hearing on 17th September 2014 seven of the ten surviving children of the deceased attended court. Six of them did not support the proposed distribution in the application, while two were in support.
As the children were not in agreement, I postponed the application dated 7th November 2013 to 29th October 2014 to allow them time to consult and agree on the assets.
On 29th October 2014, seven of the surviving children attended court. I was informed that they had held a meeting on 12th October 2014 and agreed to distribute the estate of the deceased equally amongst themselves.
An original of the handwritten minutes of the proceedings at the meeting on 12th October 2014 was placed before me. The body of the minutes indicates that the children agreed to have the estate shared equally among all the ten (10) children of the deceased. At the end of the minutes the children’s names are listed. Nine of the children signed the minutes, with the exception of Lawrence Ng’ang’a Kamiri.
At the court appearance on 29th October 2014, eight of the children addressed the court and stated that they had agreed on equal distribution as per the minutes of 12th October 2014. Bertha Njau stated that their brother, Lawrence Ng’ang’a Kamiri, was also in agreement. It was only Godfrey Kahuro who indicated that he did not support equal distribution. Curiously, the minutes of 12th October 2014 indicate that he did sign the minutes.
I have perused the record herein. The deceased died intestate on 20th July 1986. He was survived by ten (10) children being seven (7) sons and three (3) daughters.
Having died after the Law of Succession Act, Cap 160, Laws of Kenya, had come into force, the law to form the intestate succession to his estate is Part V of the Law of Succession Act.
The deceased was survived by children but no spouse. The relevant provision in the circumstances is Section 38, which states as follows:-
“Where an intestate has left a surviving child or children and no spouse, the net intestate estate, shall, subject to the provisions of Section 41 and 42, devolve upon the surviving child, if there be only one or be equally divided among the surviving children.”
Section 38 applies to both male and female children, for it does not discriminate whether based on gender or marital status.
The proposed distribution in the minutes of 12th October 2014 fully complies with Section 38 of the Law of Succession Act. I have no basis therefore for departing from the said proposals nor from the provisions in Section 38 of the Act.
Consequently, I do hereby confirm the grant dated 21st March 2013, the estate shall be distributed equally amongst the ten (10) children as stated in the minutes of 12th October 2014. Costs shall be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF SEPTEMBER, 2015.
W. MUSYOKA
JUDGE
In the presence of ……………………..…… advocate for the Applicant.
In the presence of ………….…..….…… advocate for the Respondent.