[2023] KEHC 24940 (KLR)

In re Estate of Kamau Njoroge (Deceased) (Succession Cause 2177 of 2013) [2023] KEHC 24940 (KLR) (Family) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24940 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2177 of 2013

EKO Ogola, J

November 2, 2023

Between

George Muugi Kamau

Administrator

and

Peter Njoroge Wanjohi

1st Protestor

Beatrice Nyambura Wanjohi

2nd Protestor

Ruling

1. The deceased died intestate on 10th October 2011. He was survived by a widow, who is also deceased, three sons and five daughters. The grant of letters of administration was issued on 3rd February 2014 to George Muugi Kamau in his capacity as the deceased son. According to the administrator, the deceased estate comprises of the following properties:- Kabete/Karura/709, Ndeiya/Makutano/864, and LTK/Emperon/203.

2. The administrator filed Summons for reinstatement of the cause and Confirmation of Grant. This suit was closed on 26th June 2018 for non-appearance. Annexed to the Summons was the proposed mode of distribution of the estate. The estate was proposed to be distributed in the following manner:-Name of beneficiaryList of propertiesShareGeorge Muugi KamauPeter Njoroge WanjohiEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiKabete/Karura/7090. 1572ha0. 2023ha0. 1572ha0. 1572ha0. 1572haMary Nduta KinyuaPeter Njoroge WanjohiJenniffer Njeri NjoguLilian Wanjiru NjengaEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiNdeiya/Makutano/8640. 212ha0. 212ha0. 212ha0. 212ha0. 212ha0. 212ha0. 212haGeorge Muugi KamauMary Nduta KinyuaPeter Njoroge WanjohiJennifer Njeri NjoguLilian Wanjiru NjengaEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiLTK/Emperon/2031. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07ha

3. The protestors who are beneficiaries of the estate filed an Affidavit of Protest against the mode of distribution proposed by the Administrator. According to the protestors, the deceased had expressed his wishes to the area chief, village elders and his family on how his estate was to be divided. The following is their proposed mode of distribution:-BeneficiaryPropertyShareGeorge Muugi KamauMary Nduta KinyuaPeter Njoroge WanjohiJenniffer Njeri NjoguLilian Wanjiru NjengaEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiLoitoktok/Emperon/203Approximately 8. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07ha1. 07haPeter Njoroge WanjohiGeorge Muugi KamauGeofrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiKabete/Karura/709Approximately 0. 83ha0. 202ha0. 209ha0. 209ha0. 209haGeorge Muugi KamauPeter Njoroge WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiNdeiya/Makutano/8640. 362ha0. 362ha0. 362ha0. 362ha

4. The protestors further deposed that they have discovered that their late brother Douglas Kiruku Wanjohi had sired a son who went away with his mother.

5. In response to the Affidavit of Protest, the administrator filed a further affidavit dated 31st May 2022. He deposed that the deceased had no known wishes in form of either an oral or written will. He added that if the protestors mode of distribution was to be adopted it would disinherit four beneficiaries namely; Mary Nduta Kinyua, Esther Wangari Wanjohi, Jenniffer Njeri Njogu, and Lilian Wanjiru Njenga. He further deposed that Mary Nduta Kinyua, Jenniffer Njeri Njogu, and Lilian Wanjiru Njenga have voluntarily agreed to forfeit their right to inherit the property known as Kabete/Karura/709 in favour of the remaining beneficiaries. According to the Administrator, the assertions that their late brother Douglas Kiruku Wanjohi had sired a son is a mere allegation, information that is strange to him and the other beneficiaries.

6. The beneficiaries attempted to settle the mode of distribution out of court but the negotiations bore no fruits and were unsuccessful.

Determination 7. The law that guides this court are sections 38 and 40 the Law of Succession Act. Section 40 of the Act provides as follows;“(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. ”

8. Section 38 provides as follows:-“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”.

9. The provisions of section 38 as provided above is clear that the net intestate estate shall be divided equally among the surviving children. The administrator has deposed that Mary Nduta Kinyua, Jenniffer Njeri Njogu, and Lilian Wanjiru Njenga have voluntarily agreed to forfeit their right to inherit the property known as Kabete/Karura/709. There is no sworn statement by the three beneficiaries corroborating these averments.

10. Further to this, the protestors have alleged that the deceased had expressed his wishes to the area chief, village elders and his family on how the estate should be divided after his death. This in short is an allegation that the deceased had made an oral will. Section 8 of the Law of Succession Act recognizes both oral and written wills and Section 9 provides in respect of the latter that:“1)No oral will shall be valid unless –a)it is made before two or more competent witnessesb)the testator dies within a period of three months from the date of making the will:Provided that an oral will made …2)No oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral Will and which has not been revoked as provided by Sections 18 and 19. ”

11. The protestors have not proved that the deceased died testate or that his wishes if at all were valid enough to be used to distribute the estate.

12. On the issue of the lost son of their late brother, this remains a mere allegation. He who alleges must prove. The protestors have failed to bring before the court tangible evidence that the lost son should benefit from the deceased estate.

13. The Upshot is that in accordance with Section 38 and Section 40 of the Law of Succession Act, the deceased estate will be distributed equally amongst the beneficiaries. The mode of distribution will be as follows:-Name of beneficiaryList of propertiesShareGeorge Muugi KamauMary Nduta KinyuaPeter Njoroge WanjohiJenniffer Njeri NjoguLilian Wanjiru NjengaEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiKabete/Karura/709In equal sharesGeorge Muugi KamauMary Nduta KinyuaPeter Njoroge WanjohiJenniffer Njeri NjoguLilian Wanjiru NjengaEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiNdeiya/Makutano/864In equal sharesGeorge Muugi KamauMary Nduta KinyuaPeter Njoroge WanjohiJenniffer Njeri NjoguLilian Wanjiru NjengaEsther Wangari WanjohiGeoffrey Ng’ang’a WanjohiBeatrice Nyambura WanjohiLTK/Emperon/203In equal shares

Final Ordersa. The grant issued on 3rd February 2014 to George Muugi Kamau is hereby confirmed.b. The deceased estate will be distributed equally amongst all the beneficiaries.c. The administrator is to facilitate a survey on Kabete/Karura/709, Ndeiya/Makutano/864, and LTK/Emperon/203 to ascertain the share of each beneficiary.d. Costs be in the causeIt is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF NOVEMBER 2023……………………………………….E.K. OGOLAJUDGEIn the presence of:……………………………. for the Administrator……………………………. for the ProtestorsGisiele Muthoni Court Assistant