[2022] KEHC 15789 (KLR)

In re Estate of Marete Mbui alias M’Marete M’Mbui alias Justus Marete (Deceased) (Succession Cause 24 of 2014) [2022] KEHC 15789 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15789 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 24 of 2014

TW Cherere, J

December 1, 2022

In the Matter of the Estate of Marete Mbui alias M’’Marete M’Mbui alias Justus Marete (Deceased)

Between

Justus Kimathi Marete

Petitioner

and

Rael Regeria M’aritho

Objector

and

David Kithinji Marete

Applicant

Ruling

Introduction 1. By judgment dated July 11, 2017, the court distributed the estate of the deceased as follows:i.Each of the daughters and the widows of the deceased shall receive 1 acre in LR No Nyaki/munithu/503 and the balance thereof shall go to the four sons equally.ii.LR No Nyaki/munithu/446 is very small and may not be viably or legally subdivided into minute portions. The law on land use and other planning regulations cannot allow such subdivision. Thus, I order that LR No Nyaki/Munithu/446 shall be sold and the funds to be used to carry out survey work and other services needed in order to implement this grant. Any balance of the proceeds thereof shall be divided equally amongst all the beneficiaries herein.iii.As there is agreement of the parties, the shares in Barclays Bank and Kenya Commercial Bank shall go to the two widows in equal shares.iv.That the grant herein is confirmed on the above terms.v.Each party shall bear own costs. It is so ordered.

2. From the evidence presented before the court, the court at paragraph 5 of the judgment, the court noted that LR Nyaki/munithu/69 had been shared between the 4 sons of the deceased. It has however turns out that LR Nyaki/munithu/69 is in fact LR No Thau/mumui/69 and is still in the name of the decades and therefore forms part of deceased’s estate for distribution.

3. Applicant prays that LR No Thau/mumui/69 be sold and the proceeds thereof be shared equally between the two widows and children of the deceased. Objector on the other hand opposes the sale and proposes that LR No Thau/mumui/69 which she and her co-wife Hellen Kaimura Marete, occupy and use be distributed equally to them on account of the court not having given them any land.

4. I have considered the summons dated August 10, 2020 in the light of the affidavits on record, the previous court orders issued in this matter on July 11, 2017 and submissions filed on behalf of applicant and objector.

5. Section 40 of the Law of Succession Act cap 160 Laws of 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”.

6. There is no doubt that the widows of the deceased were not given land. It will be imprudent for this court to direct that the land that the widows occupy and cultivate be sold for that will not only lead to their eviction but will also render them homeless.

7. From the foregoing, I find that the interests of justice demand that the rights of the widows to inherit their husband’s estate be protected. Consequently, it is hereby ordered:1. The summons dated August 10, 2020 seeking that that LR No Thau/mumUI/69 be sold and the proceeds thereof be shared equally between the two widows and the deceased’s children is declined2. It is ordered that that LR No Thau/mumui/69 be distributed equally between the two widows namelyHellen Kaimura Marete and Rael Regeria M’aritho3. Certificate of confirmation dated January 24, 2019 shall be amended accordingly

MENTION ON 14TH FEBRUARY, 2023 TO CONFIRM DISTRIBUTIONDATED IN MERU THIS 01ST DAY OF DECEMBER 2022T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Petitioner - N/AFor Applicant - Mr. Mwanzia for Muia Mwanzia & Co. AdvocatesFor Objector - Mr. Gitonga for Basilio Gitonga, Muriithi & Assocates