[2018] KEHC 615 (KLR)
The court found that the protester had established a valid claim for equal distribution of the estate among the three sons of the deceased. The administrator's proposal to include his own sons and a third party was not supported by evidence of consent from the other beneficiaries or a valid sale. The court was...
Source-derived case information.
- Citation
- [2018] KEHC 615 (KLR)
- Parties
- Applicant: M’Ringera M’Itonga; Respondent: M’Rutere M’Itunga; Respondent: Jason M’Mbui M’Itunga
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 685 of 2011
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Protest allowed. Estate to be distributed equally among the three sons.
- 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
M’Ringera M’Itonga
Applicant
M’Rutere M’Itunga
Respondent
Jason M’Mbui M’Itunga
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally among the sons or as per the administrator's proposal.
- 2 Whether the inclusion of additional beneficiaries by the administrator was proper.
- 3 Whether the boundaries and occupation of the land by the beneficiaries should determine the mode of distribution.
Ratio Decidendi
The court found that the protester had established a valid claim for equal distribution of the estate among the three sons of the deceased. The administrator's proposal to include his own sons and a third party was not supported by evidence of consent from the other beneficiaries or a valid sale. The court was persuaded by the protester's testimony and the lack of evidence from the administrator, who failed to attend and testify. The court held that the estate should be distributed equally among the three sons, with each remaining on the portion they currently occupy, as this reflects both the law and the practical realities on the ground.
Court Disposition
Protest allowed. Estate to be distributed equally among the three sons.
Orders
- The estate of M’itonga M’Nicubirtu shall be distributed equally among M’Ringera M’Itunga, M’Rutere M’Itunga, and Jason M’Mbui M’Itunga, with each remaining on the portion they currently occupy.
- No orders as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE 685 Of 2011
IN THE MATTER OF THE ESTATE OF M'ITONGA M'MCUBITU ALIAS ITONGA NGUBITU - DECEASED
M’RINGERA M’ITONGA..................................................................PETITIONER
RULING
The intestate estate of the deceased M’itonga M’Nicubirtu who died on 26th April 1987 is due for distribution to M’Ringera M’itunga, M’Rutere M’itunga and Jason M’Mbui M’Itunga the sons of the deceased as per letter dated 3rd February 2011 written by chief of Kaaga location
The only property registered in the name of the deceased is L.R. Nyaki/Mulathankaari/647 M’Ringera M’Itunga was appointed Administrator on 21st March 2012.
Application dated 22nd August 2013 was filed for confirmation and the administrator proposed that the estate be distributed as follows :-
1. M’Rutere M’Itunga - .43 acres
2. Jason M’Mbui – 1. 62 acres
3. M’Ringera M’Itunga – 0. 22 acres
4. Stephen Mbaabu Harun – 0. 32 acres
5. Reuben Kathurima M’Ringera – 0. 27 acres
6. John M’Njeru – 0. 30 acres
7. Julius MiritiM’Ringera – 0. 27 acres
M’Rutere M’Itunga filed an affidavit of protest saying they had agreed as a family to distribute the estate equally among the deceased persons sons but the Administrator had shared to his sons and one John M Njeru and yet he was not a party to the sale of land to Njeru.
Jason M’Mbui said that the protester was lying because each of them occupy specific portions of land with permanent boundaries which cannot be tampered with. Jason M’Mbui urged the court to dismiss protest.
M’Ringera M’Itunga in reply to protest said that his brothers consented to mode of distribution as per their fathers wishes and that each of them have been occupying portions identified by their father for over 20 years with permanent boundaries. The Administrator said he is old and decided to distribute his share to his sons but his brothers refused.
He said a surveyor came to the ground and took measurements that he used to distribute the estate. He said if resurvey is done it will cause irreparable damage as the boundaries and structures on each ones portion will be affected.
The protest was heard by viva voce evidence. The protester testified and closed his case on 19th September 2017. He said the petitioner encroached on his portion of land which distributing the estate he said a surveyor can visit and establish portion being occupied by each beneficiary.
The petitioner did not attend to give his testimony. In the circumstances this court finds that the protester has established that the estate should be distributed equally with each of the 3 sons remaining on the portions of land they are occupying.
No orders as to costs.
HON. A. ONG’NJO
JUDGE
6. 12. 2018
Before Adwera J
Kinoti – Court Assistant
KaimenyiKithinji and co advocates – N/A for petitioner
Petitioner – N/A
Protester – N/A
N/A for Joan Ndorongo and Co. advocate for protester.
Court
Ruling delivered dated and signed in court on this 6th Day of December 2018.
HON. A. ONG’INJO
JUDGE