[2019] KEHC 10735 (KLR)
The court found that the power of attorney granted by the deceased to Nancy Wangare Ngugi was extinguished upon the deceased's death and could not be treated as a will. As the deceased died intestate, the estate must be distributed according to the Law of Succession Act. The applicant, Lucia Wanjiru Kimani, and her...
Source-derived case information.
- Citation
- [2019] KEHC 10735 (KLR)
- Parties
- Applicant: Lucia Wanjiru Kimani; Respondent: Abraham Ngugi; Respondent: Nancy Wangare
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 83 'B' of 2003
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate distributed among beneficiaries as per court order; grant confirmed.
- Judges
- HK Chemitei
- Legal Topics
- Intestate Succession, Distribution of Estate, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lucia Wanjiru Kimani
Applicant
Abraham Ngugi
Respondent
Nancy Wangare
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally among all children or in accordance with the applicant's claim.
- 2 Whether the power of attorney given by the deceased constituted a valid testamentary disposition.
- 3 Whether non-direct beneficiaries named in affidavits are entitled to a share of the estate.
Ratio Decidendi
The court found that the power of attorney granted by the deceased to Nancy Wangare Ngugi was extinguished upon the deceased's death and could not be treated as a will. As the deceased died intestate, the estate must be distributed according to the Law of Succession Act. The applicant, Lucia Wanjiru Kimani, and her late husband resided on the land and cared for the deceased, while the other daughters were married and settled elsewhere. The court held that although all children are entitled to a share of the estate, the applicant's circumstances justified a larger share. Non-direct beneficiaries named in affidavits were not entitled to a share as there was no evidence of dependency or...
Court Disposition
Estate distributed among beneficiaries as per court order; grant confirmed.
Orders
- Land parcel Waitaluk/Kapkoi Block 10/Kapkoi Sisal/311 to be divided as follows: Lucia Wanjiru Kimani – 4 Acres; Nancy Wangare Ngugi – 0.3 Acres; Hannah Wanjiku – 0.3 Acres; Margaret Wanjiru – 0.3 Acres.
- Grant of letters of administration be confirmed in the above terms.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 83 'B' OF 2003
IN THE MATTER OF THE ESTATE OF MARY WAMBOI NJATHI – DECEASED
LUCIA WANJIRU KIMANI...............................APPLICANT
VERSUS
ABRAHAM NGUGI.................................1ST RESPONDENT
NANCY WANGARE …...........................2ND RESPONDENT
JUDGMENT
1. The deceased herein Mary Wambi Njathi died intestate leaving behind the following children;
a) Margaret Wanjiru
b) Annah Wanjiku
c) Nancy Wangare
d) John Kimani Njathi
2. The only son John Njathi has sine died and his widow Lucia Wanjiru Kimani took out letters of administration and consequently replaced him in this cause.
3. The deceased left behind property No. Waitaluk/Kapkoi Sisal Block 10/Kapkoi Sisal/311 measuring 5 acres or thereabouts.
4. The parties were unable to agree on the mode of distribution. Initially this court had directed that the same be heard by way of viva voce evidence but when the matter began it became clear that the only dispute was to do with how to share out the parcel of land.
5. From the evidence on record, it appears that all the girls, who are now grandparents were married and are settled in their respective homes. As at the time their mother died, it was their brother who stayed in the suit property.
6. Nancy Wangare Ngugi objected to the line taken by her brother in terms of sharing out the land. She stated in her affidavit on record that the deceased had given her power of Attorney dated 17/7/2001 in which she had instructed her to divide the land as follows and have then transferred.
1. John Kimani - 3 Acres
2. Margaret Wanjiru - 1. 5 Acres
3. Hannah Wanjiku - 0. 5 acres
4. Kamau Thuku - 0. 5 Acres
5. Nancy Wangare – 1. 5 acres
7. As cOrreCtly submitted by the counsel for the Applicant the said Power of Attorney was not effected as at the time the deceased died, the land was still intact and no subdivision or transfer had been effected. More importantly, the said Power of Attorney was extinguished at the death of the donor.
8. The same cannot be termed a will. Whatever it is worth the donee ought to have utilised the instructions given therein. This court cannot therefore rely on the same.
9. Having stated so, and in the absence of a will the court shall therefore share out the deceased estate pursuant to the provisions of the Succession Act. The beneficiaries do recognise each other. The beneficiaries do recognise each other. The only difference in my view is that Lucia Kimani the appellant feels that she should inherit the entire parcel of land as the Respondent are all married and eking their living in their respective homes.
10. Obviously in terms of equity there is always need to strike a balance between the beneficiaries. The other people mentioned in the affidavit of the Respondent sworn on 12/7/2011 namely Kamau and Grace Wanjiku Muturi are not direct beneficiaries of the deceased estate. There is nothing exhibited to show that they were take care of by the deceased. At any rate they should derive their share from his wife and their parents respectively.
11. Having stated so, there is every evidence on the pleadings available that the applicant and her late husband resided on the land throughout. The rest of the daughters have their homes and are thus desiring to get a share from their mother's estate.
12. Taking into consideration the above scenario, I am inclined to grant them their wish. They shall however not get an equal share of the estate with the Applicant. None of them showed that they derived their livelihood from the deceased like the applicant. Noting that the deceased died aged 96 years there is every probability that it was the applicant who took care of her and provided for her needs till her death.
13. Consequently Land parcel Waitaluk/Kapkoi Block 10/Kapkoi Sisal/311 be divided out as follows:-
a) Lucy Wanjiru Kimani – 4 Acres
b) Nancy Wangare Ngugi – 0. 3 Acres
c) Hannah Wanjiku - 0. 3 Acres
d) Margaret Wanjiru – 0. 3 Acres
14. Its the considered opinion of this court that at least each of them shall have a share out of their mother's estate and as indicated above their sister in law and her husband have their fixed abode in the suit property and unlike them have nowhere else.
15. The grant be confirmed in that order. Costs in the cause.
Delivered, signed and dated at Kitale this 30th day of January, 2019.
_________________
H.K. CHEMITEI
JUDGE
30/1/19
In the presence of:
Wanyonyi for the Petitioner
Bisonga for Respondent
Court Assistant - Kirong
Judgment read in open court.