[2018] KEHC 6934 (KLR)
The court found that the proposed reduction of the daughters' shares from 0.35 acres each to a total of 0.20 acres to be shared among all daughters was not supported by evidence of their consent and would amount to discrimination on the basis of gender, contrary to the Constitution. The court held that all...
Source-derived case information.
- Citation
- [2018] KEHC 6934 (KLR)
- Parties
- Applicant: Lunge M’Imunya; Respondent: Josephat Kubai
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 112 of 2006
- Procedural Posture
- Succession Cause / Ruling on Mode of Distribution After Confirmation of Grant
- Outcome
- Mode of distribution ordered in accordance with constitutional and statutory requirements; daughters to receive 0.35 acres each, sons to receive one acre each, and Lunge M’Imunya to receive 1.30 acres. No order as to costs.
- Legal Topics
- Succession of Estates, Distribution of Land, Gender Equality in Inheritance, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lunge M’Imunya
Applicant
Josephat Kubai
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Distribution After Confirmation of Grant
Legal Issues
- 1 Whether the proposed mode of distribution of the deceased's estate complies with the Constitution and the Law of Succession Act.
- 2 Whether the daughters of the deceased are entitled to equal shares as the sons in the distribution of the estate.
- 3 Whether reduction of the daughters' shares without their consent is lawful.
Ratio Decidendi
The court found that the proposed reduction of the daughters' shares from 0.35 acres each to a total of 0.20 acres to be shared among all daughters was not supported by evidence of their consent and would amount to discrimination on the basis of gender, contrary to the Constitution. The court held that all beneficiaries, including daughters, are entitled to equal treatment and protection under the law. The initial consents signed by the daughters for 0.35 acres each were valid, and any reduction without their express consent would infringe their constitutional rights. Therefore, the court ordered that 1.40 acres be shared equally among the four daughters (0.35 acres each), with the...
Court Disposition
Mode of distribution ordered in accordance with constitutional and statutory requirements; daughters to receive 0.35 acres each, sons to receive one acre each, and Lunge M’Imunya to receive 1.30 acres. No order as to costs.
Orders
- 1.40 acres of the estate shall be shared equally among the daughters (0.35 acres each).
- The balance of the estate shall be shared among the sons, each receiving one acre, with Lunge M’Imunya receiving 1.30 acres.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 112 OF 2006
IN THE MATTER OF THE ESTATE OF M’IMUNYA M’EREA DECEASED
LUNGE M’IMUNYA..........................................................................PETITIONER
VS
JOSPHAT KUBAI...........................................................................RESPONDENT
RULING
On 27th day of February 2014 the court issued grant in the joint names of the petitioner and the objector Lunge M’Imunya and Josephat Kubai respectively. The court ordered that parties file mode of distribution.
On 25th day of May 2017 the court confirmed that parties had filed respective modes of distribution and cause was referred to Registry for a date before the court to fix a date for the ruling. Lunge M’Imunya proposed in affidavit sworn on 4th August 2014 that he gets a large share as he is eldest son and that he had given his 2 brothers land elsewhere in Kiriinya and they should each surrender to him 0. 10 acre each to enable him have 0. 20 acres more. He also proposed that the deceased daughters get 0. 20 acres to share equally.
Josephat Kubai M’Imunya in his affidavit sworn on 19th June 2014 listed the names of the beneficiaries – children to the deceased and was in agreement with his Co-Administrator that the daughters get 0. 20 acres jointly to share equally and that the balance to be shared equally among the sons. He does not explain why L.R. No. Ithima/Ntunene/720 has an area of 5. 7 acres. Although Josephat Kubai has averred at Paragraph 5 that his sisters told him they were not consulted in earlier distribution and did not desire to have share of estate ascribed to them in the earlier confirmed grant, there is no evidence of this claim.
None of the deceased daughters have sworn affidavits to confirm they challenge earlier distribution of the estate by Lunge M’Imunya, Kanuu M’Imunya thumb- printed the consent to distribution and confirmation dated 14th May 2007 similarly Sabina Asha M’Imunya, Paulina Karamburi Kanocia M’Imunya and Nthuku M’Imunya are shown to have put their thumbprint to the consent. Josephat Kubai did sign the consent. Which of the 2 modes of distribution is in accordance with the constitution and the Law of Succession Act?
Beneficiaries ordered to attend court during ruling. The initial mode of distribution Lunge Proposed by M’Imunya was that
Josephat Kubai gets – 1. 00 acres.
Nthuku M’Imunya gets 1. 00 acre
Kanocia Imunya gets 0. 35 acres
Karamburi M’Imunya gets 0. 35 acres
Asha M’Imunya gets 0. 35 acres
Kancuu M’Imunya gets 0. 35 acres
Douglas Mungathia gets 0. 50 acres
Where Lunge M’Imunya gets 2. 00 acres.
It is not explained why Josephat Kubai and Lunge M’Imunya now want to reduce the daughters shares from 0. 35 each which was agreed on as per affidavit sworn on 14th May 2007 to only 0. 20 acres to be shared by all the daughters. Lunge M’Imunya’s claim that he should get the lion’s share because he is the eldest son is not consistent with the constitutional provision under Article 10 (2) (b) of human dignity equity social justice inclusiveness, equality human rights, non discrimination and protection of the marginalised.
Furthermore, Article 27(1) provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 23(3) speaks specifically to the situation herein that women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres. If the deceased persons daughters had agreed to have 0. 35acres each which is less than what the sons would have then it would be a violation and infringement of their constitutional right to reduce the share without their consent. In the circumstances this court hereby orders that 1. 40 acres shall be shared equally amongst the daughters i.e. 0. 35 acres each whereas the balance/remainder to be shared amongst the sons getting one acre each and Lunge M’Imunya getting the larger share of 1. 30 acres.
No orders as to costs.
HON. A.ONG’INJO
JUDGE
RULING, DELIVERED, DATED AND SIGNED IN COURT ON
10TH Day of MAY 2018.
In presence of:
Petitioner: M/s B.G. Kariuki Advocate – No appearance
Respondent: M/s Maitai Rimita Advocate – No appearance
Notice of Ruling to issue to advocates and parties by the DR
HON. A.ONG’INJO
JUDGE