[2022] KEHC 13248 (KLR)

In re Estate of Joseph Njenga Chege (Deceased) (Succession Cause 1161 of 2015) [2022] KEHC 13248 (KLR) (Family) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13248 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1161 of 2015

AO Muchelule, J

October 3, 2022

IN THE MATTER OF THE ESTATE OF JOSEPH NJENGA CHEGE (DECEASED)

Between

Esther Nyambura Njenga

Applicant

and

Margaret Wanjiku Njenga

Respondent

Ruling

1. The deceased Joseph Njenga Chege died intestate on 13th October 2014. He left two widows: the applicant Esther Nyambura Njenga and the respondent Margaret Wanjiku Njenga. The children of the applicant with the deceased are Gladys Wambui Njenga, Paul Chege Njenga and David Kingeru Njenga. The children of the respondent with the deceased are Frashier Gathoni Njenga, Mary Wanjiku Njenga and Eric Chege Njenga.

2. There is no dispute that the deceased left the following properties in his name:-a.Dagoretti/Riruta/T. 135 measuring 0. 045 Ha;b.Karai/Karai/920 measuring 0. 13 acres;c.Karai/Karai/2776 measuring 0. 26 Had.Karai/Karai/1726 measuring 0. 630 Hae.Nguirubi/Thigio/577 measuring 1. 86 Haf.Funds in Equity Bank A/C No. xxxx

3. There is land parcel Karai/Karai/920 that was jointly registered in the names of the deceased and the respondent and it measures 1. 745 Ha. In the application dated 6th March 2020 by the applicant to confirm the grant that was jointly issued to her and the respondent, she proposed that their children do share the parcel equally. The respondent opposed the proposal saying that upon the death of the deceased, the right of survivorship set in under section 91(4) of the Land Registration Act and therefore she became the owner of the parcel (Re Estate of Dorica Lumire Mapesa (Deceased) [2018]eKLR). Her case that by dint of the registration and the right of survivorship the parcel was not the free property of the deceased that was available for distribution to the beneficiaries is well grounded.

4. The deceased was polygamous. By dint of sections 35, 40 and 42 of the Law of Succession Act, the estate should be divided among the houses according to the number of children in each house adding a surviving widow as an additional unit, and taking into account any previous benefit (Elizabeth Chepkoech Salat –v- Josephine Chesang Chepkwony Salat[2015]eKLR).

5. Both the applicant and the respondent agree that parcels Karai/Karai/2776, Nguirubi/Thigio/577, Karai/Karai/920 and Karai/Karai/1726 should be shared equally among their children. I will allow the proposal and direct that each of these parcels be shared equally among the six children.

6. Plot No. Dagoretti/Riruta/T.135 has single storey permanent stone building with 2 shops erected on front side and several semi-permanent structures on the rear side of the plot consisting of 4 single room rental units, 2 single rooms and abolition block. The applicant claimed this parcel saying that she has lived on it for the last 50 years and that it was her matrimonial home which she helped develop, whereas the respondent lives on Karai/Karai/919 which measures 5. 74 acres. The respondent sought that the property be sold and the proceeds be shared equally among the beneficiaries. She did not dispute that she lives on Karai/Karai/919 and that the applicant lives on the Dagoretti/Riruta/T.135. She did not dispute that the applicant has lived here for the last 50 years and that she helped develop it. I accept that the parcel (Dagoretti/Riruta/T.135) should go to the applicant, and find so. Parcel Karai/Karai/919 shall go to the respondent.

7. The proceeds of Equity Bank at Kawangware Branch A/C No. xxxx shall be shared equally between the applicant and the respondent. This is what either of them proposed.

8. In those terms, the joint grant issued to the applicant and the respondent is hereby confirmed. Each party shall bear own costs.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 3RD DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE