[2008] KEHC 1775 (KLR)
The court found that the deceased was polygamous and that the administrator's proposed distribution unlawfully excluded daughters and the widow from inheriting. The law does not discriminate on the basis of gender or marital status, and all children of the deceased are entitled to inherit equally. The protest was...
Source-derived case information.
- Citation
- [2008] KEHC 1775 (KLR)
- Parties
- Applicant: Samuel Njeru Nyaga; Respondent: David Njeru Josiah Gitari
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Application 264 of 2004
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Protest allowed; grant confirmed with modification to include protester.
- Legal Topics
- Succession, Distribution of Estate, Polygamous Families, Gender Equality in Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Njeru Nyaga
Applicant
David Njeru Josiah Gitari
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the daughters of the deceased are entitled to inherit a share of their father's estate in a polygamous succession.
- 2 Whether the administrator's proposed distribution unlawfully excluded certain beneficiaries, specifically daughters and the widow.
- 3 Whether the law permits discrimination in inheritance based on gender or marital status.
Ratio Decidendi
The court found that the deceased was polygamous and that the administrator's proposed distribution unlawfully excluded daughters and the widow from inheriting. The law does not discriminate on the basis of gender or marital status, and all children of the deceased are entitled to inherit equally. The protest was allowed, and the grant was confirmed with an order to allocate ½ acre to the protester, Kellen Wanyaga Njeru, as prayed. The court emphasized that there was no valid reason to exclude the daughters from the inheritance and that the administrator's proposal was contrary to the principles of equality enshrined in the Law of Succession Act.
Court Disposition
Protest allowed; grant confirmed with modification to include protester.
Orders
- The protest is allowed.
- The grant is confirmed and certificate issued to accommodate the protester by allocating her ½ acre as she prays.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU Succession 264 of 2004
IN THE MATTER OF THE ESTATE OF NJANAKE………..………….DECEASED
AND
SAMUEL NJERU NYAGA………………………………………………..PETITIONER
DAVID NJERU JOSIAH GITARI………………………………………….OBJECTOR
RULING
Summons for confirmation of grant in this estate of Nyaga Njanake deceased was filed on 7/9/2005 by Samwel Njeru Nyaga. The application is supported by affidavit giving the identities of the survivors and the manner the administrator proposes to distribute the estate.
On 15/11/2005 one Kellen Wanyaga Njeru and Judy Muthoni and Ephantus Njeru filed an affidavit in protest against confirmation on the ground that the petitioner came to court without informing them and he has also excluded them from the distribution of the assets and also some so called beneficiaries are not survivors of the deceased. The hearing of the protest commenced on 1/11/2007. Kellen protester gave evidence. She said she was the eldest daughter of deceased and Samuel Njeru Nyaga is the youngest son of deceased. She said that her father the deceased had two wives:-
1. Monica Ruguru and
2. Rail Irimba Nyaga who is still living.
The beneficiaries are stated in the affidavit in support. She was not informed when case was filed. She gave her mother her ID card so that she can be included in the distribution. She said they are 2 girls and she was claiming that her mother was using before her death ½ acre portion. The widow living, Rail Irimba, testified that in his lifetime her husband had divided the land using surveyors. She was in charge of survey. She said that Kellen is entitled. Samuel Njeru has two portions from his mother and father. That s why he has taken 1 ½ acres. Let it be noted that on 1/11/2007 when hearing took place the petitioner did not appear. It is clear the deceased was a polygamous man. However the surviving widow desires that both boys and girls to inherit their fathers land. She supports the protest. The affidavit filed by Administrator shows that the survivors of deceased are seven persons including the widow. However he proposes to distribute the land among other 4 person named as:-
1. John Nyaga Njue
2. Angelo Kithinji Njoka
3. Daniel Njeru Josiah Gitiri
4. Moses Njue Mbogo
It is not explained how these persons acquired right of inheritance. The law does not discriminate between gender or by marital status. All children of deceased should inherit equally. There is no objection here why the protester should not inherit a share of her father’s estate she asks only for ½ acre.
I find that she and all daughters of deceased ought to inherit. The protest is hereby allowed. The grant is confirmed and certificate issued to accommodate the protester by allocating her ½ acre as she prays.
No order as to costs.
It is so ordered.
Dated this 9th April, 2008
J. N. KHAMINWA
JUDGE
9/4/2008
Khaminwa – Judge
Njue – Clerk
Kellen – present
Read in open court.
J. N. KHAMINWA
JUDGE