[2020] KEHC 3179 (KLR)
The court found that the Law of Succession Act, specifically Section 38, mandates equal distribution of the estate among surviving children where there is no spouse. The protestor's claims regarding prior agreements, care for the deceased, and the chief's letter were unsubstantiated and did not meet the threshold to...
Source-derived case information.
- Citation
- [2020] KEHC 3179 (KLR)
- Parties
- Applicant: James Ndara Nyakeru; Respondent: Harrison Ndigoitha Nyakeru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 126 of 2016
- Procedural Posture
- Succession Cause / Ruling on Protest to Confirmation of Grant
- Outcome
- Protest dismissed; grant confirmed; estate to be shared equally between the two sons.
- Judges
- A Ali-Aroni
- Legal Topics
- Intestate Succession, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ndara Nyakeru
Applicant
Harrison Ndigoitha Nyakeru
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Confirmation of Grant
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally between the two sons in accordance with the Law of Succession Act.
- 2 Whether the protestor's claims of prior agreement and care for the deceased affect his entitlement to the estate.
Ratio Decidendi
The court found that the Law of Succession Act, specifically Section 38, mandates equal distribution of the estate among surviving children where there is no spouse. The protestor's claims regarding prior agreements, care for the deceased, and the chief's letter were unsubstantiated and did not meet the threshold to disqualify or reduce the applicant's share. The court emphasized that, regardless of cultural expectations or alleged family arrangements, statutory law prevails in intestate succession. Therefore, the estate property, Ngong/Ngong/10983, must be shared equally between the two sons.
Court Disposition
Protest dismissed; grant confirmed; estate to be shared equally between the two sons.
Orders
- The protest dated 19th February 2020 is dismissed.
- The grant is confirmed in accordance with paragraph 6 of the affidavit in support of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 126 OF 2016
IN THE MATTER OF THE ESTATE OF MALION NYAKERU NDIGUTHA ALIAS MARION NYAKERU NDIGUTHA(DECEASED)
R U L I N G
1. This is a ruling relating to a protest raised towards the confirmation of grant by Harrison Ndigoitha Nyakeru one of the two sons of the deceased herein Malion Nyakeru. The mover of the application for confirmation of grant is the other son of the deceased James Ndara Nyakeru.
2. The deceased died on the 2nd on January 2009 and on the 28th of June, 2017 her two sons; James Ndara Nyakeru and Harrison Ndigoitha Nyakeru petitioned for grant of Letters of administration which grant was issued to both of them as co-administrators on the 13th December, 2017.
3. In a letter dated 5th September, 2017 the Chief of Lemelepo Location in Kiserian affirmed that the two were the only heirs of the deceased who was never married.
4. In the application for confirmation of grant James Ndara Nyakeru proposed that the only asset of the estate being Ngong/Ngong/10983 be shared equally between him and his brother Harrison Ndigoitha Nyakeru. The property is 0. 405 Ha.
5. Harrison Ndigoitha was not in agreement and he filed an affidavit of protest based on grounds that his brother and the deceased were not on good terms; he single handily took care of his mother and that the applicant had in the year 2010 agreed to have only a ¼ portion of the land in a meeting held at the chief’s.
6. The applicant refuted the allegations of having fallen out with his mother stating that differences if any had been sorted out; he further denied ever relinquishing his interest as alleged; and disowned the chief’s letter alleging that he signed the same without reading the content.
7. The law on how property of a deceased is to be shared where the deceased leaves children behind and no spouse is spelt out in Section 38 of the Law of Succession Act as follows:
” where an intestate has left a surviving child, or children but no spouse the net intestate 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.”
8. The accusation by the protestor was not proved save for a letter dating back to 2004 where the deceased and the applicant had differences. The authenticity of the chief’s letter was not established either. In any case a chief’s letter where there is disagreement on its content cannot alter the law, neither the allegation of neglect of the deceased by the Applicant needless to say that though it is expected in an African set up and it is indeed noble of children to respect and take care of their parents, where a deceased dies intestate the law does not put any conditions that would otherwise disentitle equal inheritance amongst the deceased children.
9. Consequently, based on the law the protest dated the 19th of February, 2020 fails.
10. The grant be and is hereby confirmed in line with paragraph 6 of the affidavit in support of the application. Property L.R. No. Ngong/Ngong/10983 be shared equally between the two.
11. Either of the two administrators be at liberty to follow up the subdivision and eventual issuance of titles. The cost of the subdivision be borne by both parties equally.
12. Each party to bear their own legal costs.
DATED, SIGNEDandDELIVEREDat NAIROBI this 17th DAY OF SEPTEMBER 2020.
………………..
ALI-ARONI
JUDGE