[2022] KEHC 1087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 548 OF 2007

IN THE MATTER OF THE ESTATE OF JOSEPH KIBERA GITURO (DECEASED)

ESTHER WAIRIMU KIBERA..................................................ADMINISTRATOR/APPLICANT

VERSUS

JULIUS KIBERA GITURO............................................ADMINISTRATOR/1ST PROTESTOR

ESTHER MUTHONI GITARI........................................ADMINISTRATOR/2ND PROTESTOR

RULING

1. The deceased Joseph Kibera Gituro died intestate on 26th December 1990. He was survived by the following children:-

(a) Charles Gituro Kibera;

(b) Esther Wairimu Kibera;

(c) Anne Wanjira Kibera;

(d) Ruth Wangui Kibera;

(e) Simon Gitari Kibera; and

(f) Lucy Wanjiru Kibera.

2. Charles Gituro Kibera died and left a son Julius Kibera Gituro (1st protester). Simon Gitari Kibera also died. He left a widow Esther Muthoni Gitari (2nd protester). Anne Wanjiru Kibera died and was survived by Beatrice Wangui Mwangi.

3. The deceased left parcel Gikondi/Thimu/366 measuring 6 acres. There is Gikondi/Thimu/321 that was registered in the name of Simon Gitari Kibera which Esther Wairimu Kibera (the applicant) contents that it belonged to the deceased but that he got it registered in the name of Simon Gitari Kibera to hold in trust for the entire family. This is disputed by the 2nd protester who stated that that was her late husband’s land. She has inherited it. Under section 3of the Law of Succession Act (Cap. 160), this was not the deceased’s free property. If the administrators of the deceased believe that this was property registered in trust, they have to move the Environment and Land Court against the 2nd protester (as the administrator of the estate of Simon Gitari Kibera) for the necessary declarations. When it eventually becomes available to the estate of the deceased, it will be shared by the beneficiaries herein.

4. The same will be for Plot No. 19 Nduma which was registered in the name of Charles Gituro Kibera but which the deceased’s family claims was registered in his name to hold in trust for the family. For now, it was not the free property of the deceased.

5. It follows that the only property available for distribution is Gikondi/Thimu/366.

6. The administrators of the estate of the deceased are the applicant, the 1st protester and the 2nd protester.

7. The present application was dated 25th September 2019. It was filed by the applicant seeking the confirmation of the grant. It sought the distribution of the estate of the deceased to the beneficiaries. What was sought to be distributed was Gikondo/Thimu/366. She proposed that each of the beneficiaries of the deceased should get an equal share of the parcel; that is, each beneficiary should get one acre. The application was supported by consent to the confirmation of the grant that was signed by herself, Ruth Wangui Kibera, Lucy Wanjiru Kibera and Beatrice Wangui Mwangi.

8. The 1st protester filed an affidavit to oppose the application. His proposal was that he gets 5 acres and the 2nd protester gets one acre. The 2nd protester’s case was that, because the deceased had given 4 acres comprised in Gikondi/Thimu/321 to Simon Gitari Kibera, the late Charles Gituro Kibera was entitled to 4 acres of Gikondi/Thimu/360 and that the balance of 2 acres should be shared equally by the two sons. That means that the deceased’s daughters should not benefit from the estate of the deceased. The 1st protester was of the same view; that the daughters of the deceased had no entitlement. Beatrice Wangui Mwangi withdrew her consent to the distribution proposed by the applicant.

9. The protesters’ case was that, the deceased wished that only the sons should benefit from his estate. The reason why the daughters should not benefit was because they were married and had settled with their husbands. The applicant’s case was that all the children of the deceased had each an equal claim and entitlement to the estate that he had left.

10. This is a straightforward application to deal with. Under section 38 of the Act:-

“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.”

11. Article 27 of the Constitution prohibits any form of discrimination based on race, sex, marital status or culture. Article 27(3) provides that:-

“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”

12. Courts have continued to rule that section 38 of the Act has underlined the principle of equal distribution of the net estate of a deceased person to all his/her children irrespective of their gender, and without caring whether or not they are married (Douglas Njuguna Muigai –v- John Bosco Maina Kariuki & Another [2014]eKLR; In Re Estate of Solomon Ngatia Kariuki (Deceased) [2008]eKLR; Peter Kariuki Keingati & 4 Others –v- Dr. Ann Nyokabi Nguthi & 3 Others [2014]eKLR).

13. If the applicant and her sisters are denied benefit from the estate of their late father (deceased), either because they are daughters or that they are married, that would offend both section 38 of the Act and Article 27 of the Constitution. That would be discrimination on account of their sex and marital status.

14. Consequently, I determine that each of the six children of the deceased will get one acre of Gikondi/Thimu/366. The share of Charles Gituro Kibera will go to Julius Kibera Gituro to hold in trust for himself and for the other children of the said Charles Gituro Kibera in equal shares. The share of Simon Gitari Kibera will go to Esther Muthoni Gitari to hold in trust for herself and the children of the said Simon Gitari Kibera in equal shares. The share of the said Anne Wanjira Kibera will go to Beatrice Wangui Mwangi to hold in trust for herself and the children of Anne Wanjira Kibera in equal shares.

15. In those terms, the grant issued to Esther Wairimu Kibera, Julius Kibera Gituro and Esther Muthoni Gitari on 26th November 2019 shall be confirmed.

16. This was a family dispute. Each side shall bear own costs.

DATED and SIGNED this.......day of MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE