[2019] KEHC 10580 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT CHUKA

SUCCESSION CAUSE NO.64B OF 2016

FORMERLY MERU SUCC. CAUSE NO.319 OF 2014

IN THE MATTER OF THE ESTATE OF THE LATE SEBASTIAN

MBAKA MUTUA alias MBAKA MUTUARUBIU (DECEASED)

RUCIA NKITHI SEBASTIANO...................1ST ADMINISTRATIX/APPLICANT

VERSUS

LIBERATA KAGENI MBAKA......................2ND AMINISTRATRIX/APLICANT

J U D G M E N T

1. This cause relates to the estate of the late Sebastian Mbaka Mutua (deceased) who died on 12th October, 2000 at Chuka Hospital domiciled at Njuri, Meru South. The deceased died intestate and though the petition indicated that he left only 2 persons (widows) namely; Rusia Nkithi Sabastiano and Silvester Kanini Njoka surviving him, it later transpired that the deceased also left the following surviving him.

(i) Peter Mutegi Mbaka (deceased)

(ii) Liberata Kageni Mbaka

(iii) Nasared Kathambi Mbaka

(iv) Poline Kambura Mbaka

(v) Silvia Wanja Mbaka

(vi) Nancy Gacunku Mbaka

(vii) Delephino Mutethia Mbaka

(viii) Morris Murimi Mbaka

(ix) Caroline Makena Mbaka

(x) Naomi Gaceri Mbaka

2. The properties comprising the estate are listed as follows:

(a) L.R. Magumoni/Thuita/1892

(b) L.R. Magumoni/Rubate/763

3. This court appointed Rusia Nkithi Sebastiano and Liberate Kageni Mbaka as joint administratrixes on 3rd July 2018 and granted liberty to apply for confirmation of the said grant before the expiry of the statutory period of 6 months.

4. Rusia Nkithi Sebastiano, the Petitioner/applicant vide Summons for Confirmation of Grant dated 17th July, 2018 applied for confirmation of the said grant proposing that the properties comprising the estate be distributed as follows:-

(a) L.R . NO. Magumoni/Thuita/1892 measuring 2. 952 ha

(i) Rusia Nkithi Sebastano

(ii) Liberata Kageni Mbaka equal share

(b) L.R. No. Magumoni/Rubate/763

(i) Rusia Nkithi Sebastiano

(ii) Liberata Kageni equal share

5. The proposal by the 1st administratrix met resistance from Liberata Kageni Mbaka (the 2nd administratrix) who filed an affidavit of protest sworn on 4th October, 2018 deposing that the proposal by 1st administratrix is unfair to her. She has deposed that the deceased in his life time gifted Peter Mutegi Mbaka from the 1st house parcel No. Magumoni/Thuita/1511 measuring 4. 30 acres. She has proposed that the estate be distributed equally among all the dependants as follows:-

A) L.R. No. Magumoni/Thuita/1892

(i) Lucia Nkithi - 0. 729 acres

(ii) Liberata Kageni - 0. 729 acres

(iii) Silvester Kanini - "

(iv) Poline Kambura Mbaka - "

(v) Silvia Wanja Mbaka - "

(vi) Nancy Gacunku Mbaka - "

(vii) Delephino Mutethia Mbaka "

(viii) Morris Murimi Mbaka - "

(ix) Caroline Makena Mbaka - "

(x) Naomi Gacera Mbaka- "

(b) L.R Magumoni/Rubate/763 - 0. 85 acres

(i) Nazard Kathambi Mbaka - whole

6. There is no dispute in this cause that the deceased died intestate and was a polygamous man. The main bone of contention in my view is the fact that the first house belonging to Lucia Nkithi Sebastiano only had two children while in the 2nd house, the children are eight and therefore each house is preferring is proposal that would favour it.

7 I have considered the submissions made on behalf of the 1st administratrix; Mr. Nyenyire learned counsel for 1st administratrix has submitted that this court should be guided by the provisions of Section 28 of the Law of Succession Act in the distribution of the estate and contended that the estate should be distributed according to the number of houses.

8. On his part Mr. I.C Mugo learned counsel for the 2nd administratrix contended that the proposition by the 1st administratrix is neither lawful nor legal. In his view the proper distribution should be done in accordance with Section 40 of the Act with consideration that one of the beneficiaries (Peter Mutegi) had benefited from a gift intervivos from the deceased.

9. This court has considered submissions by both learned counsels and the affidavits filed herein. The provisions of Section 28 of the Act relates to the provisions of Section 26 of the same Law of Succession Act which relates to provisions for dependants not adequately provided for by either a will be a deceased person dying testate or the provisions of intestacy. In this cause the circumstances do not call for the application of Section 28of the Act as no dependant has moved this court pursuant to the provisions of Section 26 of the Act. Secondly both parties are in consensus that the Section on intestacy adequately covers both houses in this cause.

10. As I have observed above the deceased in this cause died intestate and was polygamous. The provisions of Section 40 of the Act provides that in such a scenario, the net estate is divided among the houses according to the number of children in each house, adding any wife surviving him as an additional unit. In this cause the deceased left behind two widows and ten children. One of the children (Peter Mutegi- now deceased) is said to have benefitted from a gift of 4. 3 acres from the deceased during his lifetime. The 2nd administratrix swore an affidavit to that effect and there is no rebuttal filed to deny the fact. That means that the fact is uncontested and therefore Section 42 of the Act does apply in the sense that the previous benefit is taken into account to ensure equity and equality in the distribution of the estate. Taking everything into consideration, the estate of the deceased should be divided into eleven units given the size of the properties comprising the estate. In the premises, the grant issued to the administratrixes herein on 3rd July, 2018 is hereby confirmed as per the following mode of distribution.

(a) L.R. No. Magumoni/Thuita/1892 - 7. 29 acres

(i) Lucia Nkithi Sebastiano

(ii) Liberata Kageni Mbaka

(iii) Nasared Kathambi Mbaka

(iv) Poline Kambura Mbaka

(v) Silvia Wanja Mbaka equal share

(vi) Nancy Gacunku Mbaka

(vii) Delephino Mutethia Mbaka

(viii) Morris Murimi Mbaka

(ix) Calorine Makena Mbaka

(x) Naomi Gaceri Mbaka

(b) L.R. Magumoni/Thuita/763- 0. 85 acres

(i) Silvester Kanini - whole

This being a family matter, I shall make no order as to costs.

Dated, signed and delivered at Chuka this 16th day of January 2019.

R.K. LIMO

JUDGE

16/1/2019

Judgment signed, dated and delivered in the open court in presence of Nyenyire for Applicant and 2nd administratrix in person.

R.K. LIMO

JUDGE

16/1/2019