[2022] KEHC 16093 (KLR)

In re Estate of Peter Kariuki Kamanu (Deceased) (Succession Cause 11 of 2016) [2022] KEHC 16093 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16093 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 11 of 2016

RB Ngetich, J

December 1, 2022

Between

Susan Wanja Kariuki

Applicant

and

Winfred Nyakio Kariuki

Respondent

Judgment

1. This matter relates to the estate of Peter Kariuki Kamau aka Peter John Kairuki. Grant Letters of administration were issued to Susan Wanja Kariuki and Winfred Nyakio Kariuki the applicant and respondnet respectively on November 16, 2016.

2. By an application dated January 27, 2017, Susan Wanja Kariuki filed summons for the confirmation of the grant.

3. She proposed the following mode of distribution; Kiambaa/Ruaka T. 307

. Susan Wania – whole share Kiambaa/Waguthu/1622

.Catherine Wanjiru - 1/4. Macmillan Karanu Nyakio - 1/4. Nicholas John Igogo - 1/4. Susan Wania Kariuki - 1/4 Ruiru East/Juja East Block 11/4733

. Catherine Wanjiru - 1/3. Macmillan Karanu Nyakio - 1/3. Nicholas John Igogo - 1/3 Plot No 8 Ndenderu

. James Karanu Kariuki - 1/4. Joseph Mutura Kariuki - 1/4. Scholastica Wanjiru Kariuki - 1/4. Alfred Wachaga Kariuki - 1/4 Plot No 2 Waguthu Shopping Centre

.Catherine Wanjiru - 1/3. Macmillan Karanu Nyakio - 1/3. Nicholas John Igogo - 1/3 Plot Dandora Phase Two B-5421

.James Karanu Kariuki - 1/4. Joseph Mutura Kariuki - 1/4. Scholastica Wanjiru Kariuki - 1/4. Alfred Wachanga Kariuki - 1/4 East African Breweries and/or Kenya Breweries Limited Shares.

Susan Kariuki Wania -Wholeshare

4. She also proposed to be allowed to hold the shares of her children James Karanu, Joseph Mutura, Scholastica Wanjiru and Alfred Wachanga.

5. The co- administrator Winfred Nyakio Kariuki opposed the application through replying affidavit filed on March 18, 2017. She deponed that the beneficiaries have not consented to the mode of distribution; further that Susan Wanja who holds and enjoys all assests intends to delay the distribution of the estate. She proposed the estate to be distributed into two equal shares.

6. Parties took directions to dispense the application by written submissions.

applicant’s Submissions 7. Counsel filed submissions on June 13, 2022. She submitted that the respondent is a wife to the deceased and is entitled to the estate of the deceased by dint of section 29 of the Law of Succession Act and cited the case of In thematter of the estateof Stanley Rungu Karienye (Deceased) (2013) eKLR the court stated as follows;-“…. the only circumstances where a former spouse would get a share in the estate of his or her deceased former spouse is where such former spouse has moved the court under section 26 of the Law of Succession Act and the court has ordered that provision be made for such former spouse out of the estate of her former husband or wife.”

8. On the other hand counsel opposed the equal distribution of the estate of the deceased and instead states the court is to make a certain percentage for the provision of former wives and submitted that the respondent having failed to take care of the deceased at his lowest is not entitled to an equal share with the applicant.

9. Counsel further submitted that since no consent has been filed by the respondent that the children have consented to her holding the properties in trust, amounts to depriving them the estate of the deceased.

10. Counsel urged the court to find the respondent has no basis in demanding half (½) a share of the estate of the deceased.

respondent Submissions 11. The respondent contends she has been deprived inheritance of the estate of the deceased. She is not agreeable to the mode of distribution of the estate of the deceased as proposed by the applicant. Her contention is all the properties forming part of the deceased estate be shared in equal shares between herself and the applicant.

Analysis And Dertmination 12. I have considered grounds of the application and averments in the supporting affidavit. What is before the court for determination is the appropriate mode of distribution of the deceased’s estate.

13. The applicant petitioned this court for the confrmation of grant attaching the proposed mode of distribution. The respondents argument is that there is no consent on distribution of the estate of the deceased.The respondent proposes to have the property distributed in equal shares. From the record, it is not dispute that the applicant was a wife to the deceased while the respondent was a former wife to the deceased.

14. The Law of Succession in terms of section 29 defines dependant to mean:a.The wife or wives or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.b.Such of the deceased parents, step-parents, grand parent, grand children, step children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers, and half-sisters as were being maintained by the deceased. Immediately prior to his death and where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of his death.

15. The provison of the Law of Succession Act is very clear that former wives are also entitled to a reasonble provision of the deceased estate and are considered as dependant of the deceased.

16. The respondent stated that she is to hold the property in trust for her children; however, no such affidavit has been filed.

17. The court is expected to look at the best mode of distribution upon taking into consideration proposal by both the protestor and the applicant. In so deciding I will be guided by the Court of Appeal No 30 of 2014 (Nyeri) In the matter of the estate of M’IkunguM’Mwiricha (deceased) between Justus Thiora Kiugu& 4 others and Joyce Nkatha Kiugu and another where the court stated as follows:-“The learned judge of the High Court did not need to attempt a distribution of the estate of the late M’Ikiugu M’Mwirichia when his widow, Joyce Nkatha Kiungu was alive. The Judge did not need to entertain protracted objection proceedings that raged on for over a decade. We cannot in any way blame the Judge, as he was allowing the parties to express themselves; the parties were driving the proceedings in their own way by providing the court with their own preferred modes of distribution of the deceased’s estate.We think we have said enough to demonstrate that there is no other legal way of distributing the deceased’s estate other than the Law of Succession Act cap 160”.

18. The deceased having been a polygamous man section 40 of the Law of Succession Act provides for distribution of the estate. It provides as follows:-“40 Where intestate was polygamous1)Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.2The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38”

19. The applicant and respondent were issued grant of letters of administration as co-Administrators. The respondent being a former wife and the applicant being the widow of the deceased, they were unable to agree leading to filing of application.

20. In view of section 40 of the Law of Succession Act,the estate of the deceased should be distributed equally between the two houses according to the number of children and adding the applicant and respondent as additional units in their respective houses.

21. On perusal of the court file, I have not seen consent from the applicant’s adult children for her to hold their shares. I note that the applicant Susan Wanja Kariuki has four (4) children. Her house will therefore have five (5) units including hers and the respondent Winfred Nyakio Kariuki has three (3) children and her house therefore will have four (4) units including hers. The deceased’s estate will therefore be shared in the ratio of 5:4. applicant’s house with five (5) units and respondent’s house with four ( 4) units.

Final Orders1. The deceased’s estate to be distributed in the ratio of 5:4. applicant Susan Wanja Kariuki five (5) units and respondent Winfred Nyakio Kariuki four (4) units.2. Each party to bear own costs.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 1ST DAY OF DECEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantMs. Adede for respondent