[2021] KEHC 2830 (KLR)
The court found that, under section 35 of the Law of Succession Act, the surviving spouse is entitled only to a life interest in the estate, not absolute ownership. However, since all children proposed that their father receive a share equal to each child, the court accepted this arrangement. The estate, consisting...
Source-derived case information.
- Citation
- [2021] KEHC 2830 (KLR)
- Parties
- Applicant: Muthuri M’Ringera; Respondent: Julius Gitonga Muthuri; Respondent: John Mutai Muthuri; Respondent: Zaverio Muthomi Muthuri
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 20 of 2015
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant confirmed; estate to be shared equally among spouse and seven children.
- Judges
- DW Mbuteti
- Legal Topics
- Intestate Succession, Distribution of Estate, Life Interest, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthuri M’Ringera
Applicant
Julius Gitonga Muthuri
Respondent
John Mutai Muthuri
Respondent
Zaverio Muthomi Muthuri
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the spouse of the deceased is entitled to inherit absolutely or only a life interest in the estate.
- 2 How the estate of the deceased should be distributed among the spouse and children.
Ratio Decidendi
The court found that, under section 35 of the Law of Succession Act, the surviving spouse is entitled only to a life interest in the estate, not absolute ownership. However, since all children proposed that their father receive a share equal to each child, the court accepted this arrangement. The estate, consisting solely of land parcel LR TIGITHI MATANYA BLOCK 9/363 (MIKUMBUNE), should therefore be distributed equally among the eight dependants: the spouse and the seven children. The court saw no legal impediment to this consensual distribution and confirmed the grant accordingly.
Court Disposition
Grant confirmed; estate to be shared equally among spouse and seven children.
Orders
- The grant is confirmed as sought.
- The parcel of land comprising the estate shall be shared equally by the eight dependants of the deceased (her spouse and seven children).
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
SUCCESSION CAUSE NO.20 OF 2015
IN THE MATTER OF THE ESTATE OF LYDIA KANYUA MUTHURI – DECEASED
MUTHURI M’RINGERA......................................................ADMINISTRATOR/APPLICANT
VERSUS
1. JULIUS GITONGA MUTHURI
2. JOHN MUTAI MUTHURI
3. ZAVERIO MUTHOMI MUTHURI...................................................................PROTESTORS
J U D G M E N T
1. The Deceased in this cause, LYDIA KANYUA MUTHURI, died intestate on 17/12/2008. On 20/09/2017 a grant of letters of administration intestate to her estate were issued to her spouse, MUTHURI M’RINGERA, who applied by summons dated 15/02/2018 for confirmation of that grant. He proposed at paragraph 4 of his supporting affidavit that he should inherit absolutely the only asset comprising the free estate of the Deceased, land parcel LR TIGITHI MATANYA BLOCK 9/363 (MIKUMBUNE).
2. On 30/10/2018 an affidavit of protest was filed by one JULIUS GITONGA MUTHURI, a son of the Deceased, on his own behalf and also on behalf of other named protestors, JOHN MUTAI MUTHURI and ZAVERIO MUTHOMI MUTHURI, who are also sons of the Deceased. It is counter-proposed in the affidavit of protest that the land should be shared equally by the eight dependants of the Deceased (comprising her spouse and seven children). The other 4 children (named in paragraph 3 of the affidavit sworn in support of the petition for grant are ROBERT GATOBU MUTHURI, CHARLES MWENDA MUTHURI, SIMON GICHUNGE MUTHURI and DAVID GITUMA MUTHURI.
3. The Deceased having been survived by her spouse and 7 children (all adults), distribution of her estate is governed by section 35 of the Law ofSuccession Act, Cap 160, which means that the spouse would be entitled only to a life interest in the parcel of land comprising the estate. However, the children have proposed that their father do get a share similar to that of each child. That means that the land should be shared equally between the eight of them (spouse and seven children). I find nothing wrong with that.
4. In the event the grant be and is hereby confirmed as sought. The parcel of land comprising the estate shall be shared equally by the eight dependants of the Deceased (that is her spouse and the seven children). It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 19TH DAY OF AUGUST 2021
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 21ST DAY OF OCTOBER, 2021