[2008] KEHC 1792 (KLR)
The court found that the Law of Succession Act, specifically Sections 38 and 40, mandates equal distribution of the estate among all surviving children of the deceased, irrespective of gender or marital status, in cases of intestate succession within polygamous families. The court rejected the petitioner's reliance...
Source-derived case information.
- Citation
- [2008] KEHC 1792 (KLR)
- Parties
- Petitioner: John Muriuki Maruku; Objector: Nicera Ruguru Marugu; Objector: Rosemary Marigu Mariku
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Application 323 of 2002
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protests allowed; application for confirmation of grant dismissed.
- Legal Topics
- Succession, Distribution of Estate, Polygamous Families, Equal Shares, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Muriuki Maruku
Petitioner
Nicera Ruguru Marugu
Objector
Rosemary Marigu Mariku
Objector
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the distribution of the deceased's estate among the children was lawful and equitable under the Law of Succession Act.
- 2 Whether daughters of the deceased are entitled to equal shares as sons in a polygamous family estate.
- 3 Whether the alleged oral directions of the deceased regarding distribution have legal effect without supporting evidence.
Ratio Decidendi
The court found that the Law of Succession Act, specifically Sections 38 and 40, mandates equal distribution of the estate among all surviving children of the deceased, irrespective of gender or marital status, in cases of intestate succession within polygamous families. The court rejected the petitioner's reliance on alleged oral directions from the deceased, noting the absence of supporting evidence. The court held that the proposed distribution, which allocated significantly larger shares to sons and minimal shares to daughters, was unlawful and inequitable. Consequently, the protests by the objectors were allowed, and the application for confirmation of grant as filed by the...
Court Disposition
Protests allowed; application for confirmation of grant dismissed.
Orders
- The application for confirmation of grant dated 14/11/2001 is dismissed.
- The estate shall devolve among all surviving children in equal shares.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession 323 of 2002
IN THE MATTER OF THE ESTATE OF NJIRU MWARANJERU….DSD
AND
JOHN MURIUKI MARUKU…………………………………..PETITIONER
NICERA RUGURU MARUGU….……………………………..OBJECTOR
JUDGMENT
Nicera Ruguru Maruku and Rosemary Marigu (Mariku) filed separate protest against confirmation of the grant issued to the petitioner on the grounds that they each were allocated one acre while the others are granted over ten acres and the brothers have other parcels of land. At the hearing of protests, the first witness was Rosemary Marigu Mariku a daughter of deceased. The deceased was a polygamous man with 2 wives and 12 children. She opposed the confirmation because although her father had 9. 68 Ha (24 acres) and she was never been married. She was allotted only one acre (1 acre) while the only 2 brothers took 12 acres for petitioner 10 acres for Nyaga and Nicera other protester was allotted one acre also. She testified that 4 of her sisters have died and the others 6 are married and have not asked for any inheritance. There was another piece of land held by petitioner Exhibit 2 shows the first proprietor Muriuki Muruku was registered on 17/10/1961 but now he has corrected his name to John Muriuki Maruku as from 11/10/76. The title Number is Gaturi/Nembure/942 measuring 6. 25 acres. There is also exhibit No. 3 Green Card for Gaturi/Nemburi/9277 measuring 1. 52 ha. The registered proprietor is Nyaga Marigu which has been subdivided into plot No.9620 & 9621. She further said she had 7 children to bring up and she asks for 6 acres.
Further evidence came from Petitioner who confirmed that the two wives of deceased are also dead. However he talked of directions from the father before his death but produced no supporting evidence of such instructions. He also disclosed that he got land Gaturi/Nemburi/942 and his brother Nyaga was given 4 acres. He was of the view that the two houses of his father should he represented by the sons. Nyaga also gave evidence he was of the same view like his brother that the girls (their sisters) should get each one acre only. He also confirmed that himself and his brother the petitioner hold other portions see exhibit 2 & 3. He further said that the deceased had said sons to get 10 acres, 12 acres each. The law of distribution is provided in the Act. Cap 160 Section 40 provides for distribution in polygamous families. Therefore in this case there were two widows who have now died leaving children of the deceased as provided under Section 38 of the Act. The estate shall devolve among all children surviving in equal shares sons and daughters. The two protests are allowed. The application filed by petitioner and dated 14/11/2001 is hereby dismissed.
Costs of Application to be paid from the estate of deceased.
Dated this 14th February, 2008
J.N. KHAMINWA
JUDGE
14/12/2008
Khaminwa – Judge
Njue – Clerk
Mr. Ithiga Present
Ms Fatuma HB for Okwaro
Read in the open court.
J. N. KHAMINWA
JUDGE