[2018] KEHC 865 (KLR)
The court found that the proposed distribution by the petitioners was discriminatory as it allocated the majority of the estate to the sons, leaving the daughters and widow with minimal or no share. The court emphasized that all beneficiaries are entitled to a share unless they have expressly renounced their...
Source-derived case information.
- Citation
- [2018] KEHC 865 (KLR)
- Parties
- Applicant: Julius Gennings Gichoga; Applicant: Erastus Muriira M’Magiri; Respondent: Mwingoka Self Help Group; Respondent: Janet Kaimuri Kinyua
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 309 of 1994
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
- Outcome
- estate redistributed to ensure equal shares for daughters and widow; confirmation of grant varied accordingly
- Legal Topics
- Succession, Distribution of Estate, Confirmation of Grant, Rights of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Gennings Gichoga
Applicant
Erastus Muriira M’Magiri
Applicant
Mwingoka Self Help Group
Respondent
Janet Kaimuri Kinyua
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the proposed mode of distribution of the deceased's estate was fair and in accordance with the law.
- 2 Whether the daughters and widow of the deceased were unjustly excluded from the distribution.
- 3 Whether the interests of purchasers from beneficiaries should be recognized in the distribution.
Ratio Decidendi
The court found that the proposed distribution by the petitioners was discriminatory as it allocated the majority of the estate to the sons, leaving the daughters and widow with minimal or no share. The court emphasized that all beneficiaries are entitled to a share unless they have expressly renounced their interest in court. Since there was no evidence of such renunciation by the daughters and widow, the court held that the sons should share the parcels allocated to them, but the entire parcel L.R Nkuene/Taita/280 and Plot No. 15B Nkubu Market should be shared equally among the daughters. The shares for the late Erastus Mugiira M'Magiri should go to his widow and children equally. The...
Court Disposition
estate redistributed to ensure equal shares for daughters and widow; confirmation of grant varied accordingly
Orders
- L.R Nkuene/Taita/280 and Plot No. 15B Nkubu Market to be shared equally among the deceased's daughters.
- Sons to share equally LR Nkuene/U-Mikumbune P/No. 767, Nkuene/L-Mikumbune P/No. 108, and Plot No. 60 ‘C’ Nkubu market as proposed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE 309 OF 1994
IN THE MATTER OF ESTATE OF M’MAGIRI M’IKABA (DECEASED)
JULIUS GENNINGS GICHOGA.............................................1ST PETITIONER
ERASTUS MURIIRA M’MAGIRI.........................................2ND PETITIONER
VERSUS
MWINGOKA SELF HELP GROUP..……………......…........1ST PROTESTER
JANET KAIMURI KINYUA.....................................................2ND PROTESTER
RULING
This Succession Cause relates to the estate of M’Magiri M’Ikabu deceased. By a chamber summons application filed in court on 5th May 2015, the petitioners sought to distribute the estate of the deceased in accordance with paragraph 8 thereof.
The proposed mode of distribution was opposed by the 1st protester and the 2nd protester via Replying affidavits filed in court on 3rd and 8th December respectively who contended inter alia that they had entered into sale agreements with some of the beneficiaries and that ever since they entered into said agreement, the entire family of the deceased had taken possession of the said portions which they had heavily developed.
By a ruling delivered by court on 23rd May 2018, the court noted that the petitioner had distributed the estate amongst the three sons only leaving out the daughters and the widow to the deceased. The court further noted that the widow and daughters had filed any affidavit renouncing their interests in the estate and that it would be important to have them attend court and expressly renounce their interest. It also emerged during the hearing that Erastus Mugiira and James Kiambi Magiri were already deceased and the court would therefore not go ahead and confirm distribution to them as proposed by Julius Gennings Gichoga.
The court therefore directed the estate would be subject to distribution after identification of survivors of the deceased beneficiaries and attendance in court of the widow and daughters of the deceased if a live.
When the parties appeared in court on 15th October 2018, it appeared that James Kiambi was actually alive. Similarly on 5th November 2018, the protestors were present in court while the petitioners were represented by Ms Kiome. The court subsequently directed that the matter be mentioned on 7th November 2018, to record consent on distribution. On the said date there was no appearance for the protestors. The representatives of Erastus Mugiira were however present in court. The parties intimated to court that they had agreed on distribution as follows:-
Marion Karimi Riungu to get 0. 68 acres out of Nkuene/Taita P/No. 280
Harriet Tirindi to get 0. 068 from Nkuene/Taita P/No. 280
Erastus Mugiira M’Magiri survivors to get 0. 096 acres of Nkuene/Taita P/No. 280
James Kiambi Magiri get 0. 096 acres out of Nkuene/Taita P/No. 280
The other parcels to remain as proposed by the petitioner in his proposed mode of distribution.
In the affidavit supporting Julius Gennings Gichogas application for confirmation he did propose that L.R. Nkuene/U – Mukumbune/767 – Measuring 4. 75 acres be shared equally between himself and Erastus Muguria M’Magiris wife/widow and children, L.R. Nkuene/L.Mikumbune/108 – measure 2. 035 acres to be taken in whole by James Kiambi Magiri. If the sons of the deceased Erastus Mugiira and Julius Gennings Gichoga get 2. 375 each and James Kiambi gets 2. 035 it would mean that in addition to 0. 096 from L.R Nkuene/Taita/280 they will get each 2. 471 to Julius and Erastus and 2. 131 acres to James Kiambi as compared to 0. 68 acres each that Marion Karimi Riungu and Harriet Tirindi are proposed to get respectively. This would mean that the sons get the lion’s share to disadvantage of the ladies.
My view is therefore that the sons of the deceased who are benefiting from LR Nkuene/U-Mikumbune P/ No. 767 and Nkuene/L-Mikumbune P/No. 108 as proposed in the affidavit and Plot No. 60 ‘C’ Nkubu market which the sons should share equally should leave the entire parcel No L.R Nkuene/Taita/280 and Plot no. 15B Nkubu Market to be shared by deceased persons daughters equally. The shares will then go to the widow if alive and children of the late Erastus Mugiira M’Magiri to share equally.
There shall be no orders as to costs.
HON. A.ONG’INJO
JUDGE
RULING SIGNED, DELIVERED AND DATED THIS 15TH DAY OF NOVEMBER 2018.
In the presence of:
C/A: Kinoti
1ST Petitioner – Mr. Gikunda holding brief for Kome
Mr gataru for 2nd Petitioner
Ms Aketch Advocate for protesters.
Court
Certified copy of ruling to be supplied upon payment of copying charges
Applicant:
HON. A.ONG’INJO
JUDGE