[2005] KEHC 2711 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CASE NO.263 OF 1992

IN THE MATTER OF THE ESTATE OF NJOROGE KAMAU

(DECEASED)

RULING

This ruling determines the summons dated 3rd September 1997. The applicant Kamau Mugwima, who is also the petitioner has sought for the rectification of the grant of letters of administration to reflect the following schedule of distribution of the deceased estate:

Kiambaa/Kihara/712

1. Kamau Mugwima - 2. 625 acres

2. Ngugi Njoroge - 0. 59375 acres

3. Kariuki Njoroge - 0. 59375 acres

4. Nganga Njoroge - 0. 59375 acres

5. Njenga Njoroge - 0. 59375 acres

According to the Applicant’s Supporting application this rectification is necessary as the confirmed grant reflected the distribution of 5. 6 acres, but after the aerial survey of the area, the parcel of land turned out to be 5 acres after the removal of 0. 025 acres and hence it is necessary to rectify the grant. This application was opposed by Nganga Njoroge who filed an affidavit of protest sworn on 26th August, 2004 on his behalf and on behalf of Njenga Njoroge, Kariuki Njoroge and the wife of Ngugi Njoroge (now deceased). The matters deposed to in the affidavit of protest can be summarized as follows:

1) That the deceased did not have two concurrent houses, rather after the death of the petitioner’s mother Wanjiku Njoroge in 1956, that is when the deceased mother Njeri Njoroge was married.

2) That it was the objector’s mother who brought up the petitioner in the same household, together with the objector and in the circumstances the objectors content is that the petitioner having benefited from their mother’s love care and protection, he cannot now turn around and refer to them as belonging to their mother’s house only for the sake of inheritance.

3) The objectors argued that it would be unequitable, unfair and unconceivable to divide the deceased estate according to the houses although the deceased died in 1963, the app licable law of succession would be Kikuyu Customary law, which law would not recognise a house that is inexistence.

The petitioner did not swear any affidavit in response to the allegations stated above. Both parties filed extensive written submissions, which I have considered in considerable detail. As regards the petitioner’s submissions, counsel went into details to deny the allegations that the petitioner was brought up and circumcised by the objector’s mother. I would term this portion of submission as evidence from the bar. The petitioner has not even answered to these facts in an affidavit. In the absence of any evidence by the petitioner that he was not brought up with the objectors as one family, I am of the humble view that the evidence of the objectors contained in their affidavits sworn on 26th August 2004 and 15th February, 1997 has not been controverted. Denial by way of submissions by counsel is not acceptable. In the circumstances I find that the petitioner was brought up with the objectors since his mother died in his infancy and the objector’s mother was married not in the life time of the 1st wife so the deceased was not having two concurrent houses but one house at a time. It is met and just that the deceased estate should be shared equally among the five sons who grew up together. I am in this regard encouraged by the provisions of the Section 3 of the Judicature Act. Although the deceased died in 1963 and the law applicable is the Kikuyu Customary Law, I am of the humble view that the circumstances of this case would warrant the distribution of the deceased estate equally among the Beneficiaries since there were no concurrent household but one household at a time. The second wife came in to replace the deceased 1st wife and brought up all the children. This reasoning is guided also by the provisions of Section 3(2) of the Judicature Act which provides:

“The High Court, the Court of Appeal and all Subordinate Courts shall be guided by African Customary Law in Civil Cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written laws and shall decide all such shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay”

In the circumstances I hereby order that the deceased parcel of land known as KIAMBA/KIHARA/717 less 0. 025 (1/4 ) acres that was meant to defray the costs herein should be shared equally among

Kamau Mugwima

Ngugi Njoroge (heirs)

Kariuki Njoroge

Nganga Njoroge

Njenga Njoroge

The grant issued and confirmed on 21st February 1994 be and is hereby rectified accordingly.

Costs in the cause to be provided from the proceeds of sale of 025 (1/4) of an acre. It is so ordered.

Ruling read and signed on 21st January 2005.

MARTHA KOOME

JUDGE