[2008] KEHC 1782 (KLR)
The court found that the deceased had two wives, one deceased and one surviving. The only asset of the estate was land parcel Gaturi/Nembure/1654. The surviving widow, who made no claim for herself, proposed that the land be distributed equally among the six sons of the deceased. The court held that she was entitled...
Source-derived case information.
- Citation
- [2008] KEHC 1782 (KLR)
- Parties
- Petitioner: Njeru Mkea; Protester: Paul Njue Mkea
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 958 of 2002
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Protest dismissed; grant confirmed as per supporting affidavit of petitioner.
- Legal Topics
- Succession of Estates, Distribution of Land, Inheritance Rights, Rights of Daughters
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Mkea
Petitioner
Paul Njue Mkea
Protester
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the estate of the deceased should be distributed only among the sons or equally among all children including daughters.
- 2 Whether the protester's proposal for equal division between houses and registration in trust is valid.
- 3 Whether the surviving widow is entitled to propose the mode of distribution under the Law of Succession Act.
Ratio Decidendi
The court found that the deceased had two wives, one deceased and one surviving. The only asset of the estate was land parcel Gaturi/Nembure/1654. The surviving widow, who made no claim for herself, proposed that the land be distributed equally among the six sons of the deceased. The court held that she was entitled to make this proposal under the Law of Succession Act, and that it was fair and reasonable given the small size of the land and the number of beneficiaries. The protest, which sought a different mode of distribution and inclusion of daughters, was found to have no merit. The grant was confirmed in accordance with the widow's proposal, and the protest was dismissed.
Court Disposition
Protest dismissed; grant confirmed as per supporting affidavit of petitioner.
Orders
- The distribution of the land of deceased shall be in accordance with the proposal of the surviving widow.
- The protest is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Succession Case 958 of
IN THE MATTER OF THE ESTATE OF MKEA MWARANO…DSD
AND
NJERU MKEA……...…………………………………..PETITIONER
VERSUS
PAUL NJUE MKEA……………………………………PROTESTER
RULING
Application for confirmation of grant filed on 28/12/1998 was heard on 15/11/2007. The parties gave evidence in open court. The application was opposed by Paul Njue Mkea who filed a protest on the ground that land parcel Gaturi/Nembure/1654 should be divided in two equal shares and each to each house and his house be registered in his name to hold in trust for his brother and 4 sisters named in the protest. There were 15 survivors including one widow who was still alive and 14 children of deceased both boys and daughters. The petitioner proposed that six (6) sons of the deceased from both houses to inherit each equal share (0. 476 acres) and no inheritance for daughters. The petitioner stated on oath that all daughters are married and they do not wish to take any inheritance. Ephantus Mbaka Mkea gave evidence and said the land belongs to their mother who is still alive but all the children of deceased reside on the same land. Other children of the deceased addressing the court and emphasized that the land ought to be shared equally between all children.
Upon considering the issues arising I find that the deceased had two wives one is already dead. The surviving widow proposes to share the only asset of deceased being plot number Gaturi/Nembure/1654 equally among the six sons of deceased equally. She is entitled to do so under section 35 (2) read together with Section 40 (2). It is apparent that the land is small and the beneficiaries are many. Also the surviving wife (widow) has not made any claim for herself therefore the inheritance is to be taken by children. It is fair and reasonable in the circumstances of this case.
It is ordered therefore that the distribution of the land of deceased shall be in accordance with the proposal of the surviving widow. Protest has no merit. The grant is therefore confirmed and certificate shall issue in terms of the supporting affidavit by Appellant. Protest is hereby dismissed.
It is so ordered.
Dated this 8th April, 2008.
J. N. KHAMINWA
JUDGE
8/4/2008
Khaminwa- Judge
Njue – Clerk
Parties present
Read in open court.
J. N. KHAMINWA
JUDGE