[2024] KEHC 2221 (KLR)

In re Estate of Silas M’itumwari Mukanagu (Deceased) (Succession Cause 684 of 2013) [2024] KEHC 2221 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEHC 2221 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 684 of 2013

TW Cherere, J

February 29, 2024

Between

Grace Catherine Ntinyari

Applicant

and

Muriithi R.W.Stephen

Protestor

Ruling

1. By a ruling dated 12th February, 2020, Grace Catherine Ntinyari (1stAdministrator/Applicant) and Murithi R.W Stephen (2nd Administrator/Protestor) were appointed as joint administrators of the estate.

2. Consequently, by summons dated 03rd March, 2020, 1stAdministrator/Applicant applied for confirmation of grant issued on 12th February, 2020 and made a proposal on the mode of distribution.

3. The 2nd Administrator/Protestor opposed the mode of distribution and proposed that the estate ought to be distributed to his aunt and uncle whom he did not disclose and to himself on the ground that he lived with the deceased who is his grandfather.

4. The matter before me therefore relates to distribution of the estate of the deceased.

5. Both parties agree on the following three issues.(1)That deceased was the father of Stephen Kirimi who is the father of:i.Grace Catherine Ntinyariii.Lillian Karimi Stepheniii.Roseline Makena Mutwiriiv.Mercy Kairuthi Kirimav.Erick Kimathi Kirimivi.Muriithi R.W.Stephen(2)That the deceased’s estate comprised of the following assets:i.LR. Ntima/Igoki/6204ii.LR. Ntima/Igoki/9753. That the 2nd Administrator/Protestor admits he received compensation from the National Land Commission after it hived off a portion of the estate for construction of a road. The 2nd Administrator/Protestor has however not disclosed the amount of compensation that was paid to him.

6. According to 1stAdministrator/Applicant, the estate of the deceased ought to be distributed to the children of Stephen Kirimi (deceased) and Ann Kinya Samson, the wife of Samson (deceased).

7. Accordingly, 1stAdministrator/Applicant proposed that the estate be distributed as follows:LR. Ntima/Igoki/6204i.Grace Catherine Ntinyari - 0. 0675 Haii.Lillian Karimi Stephen - 0. 059 Haiii.Roseline Makena Mutwiri - 0. 059 Haiv.Mercy Kairuthi Kirima - 0. 059 Hav.Erick Kimathi Kirimi - 0. 059 Havi.Muriithi R.M.W.Stephen - 0. 059 Havii.Anna Kinya Samson - 0. 355 Haviii.Access road - 0. 010 HaLR. Ntima/Igoki/975i.Grace Catherine Ntinyari - 0. 0289 Haii.Lillian Karimi Stephen - 0. 0289 Haiii.Roseline Makena Mutwiri - 0. 0289 Haiv.Mercy Kairuthi Kirima - 0. 0289 Hav.Erick Kimathi Kirimi - 0. 0289 Havi.Muriithi R.M.W.Stephen - 0. 0289 Havii.Anna Kinya Samson - 0. 173 Haviii.Access road - 0. 013 Ha

8. According to the 2nd Administrator/Protestor, the estate ought to be distributed to him, his aunt and uncle. Although he does not disclose who his uncle is, I suppose the aunt is Anna Kinya Samson the wife of Samson who is son of deceased.

Analysis and Determination 9. I have considered the affidavits on record and I have deduced the issues for determination to be as follows:(1)What order should be issued concerning compensation paid to the 2nd Administrator/Protestor by the National Land Commission(2)How should the estate be distributed

(1) What order should be issued concerning compensation paid to the 2nd Administrator/Protestor by the National Land Commission 10. As stated herein above, the 2nd Administrator/Protestor though he admits receiving compensation from the National Land Commission after the Commission hived off a portion of the estate for construction of a road, has not disclosed the compensation sum he received thereof.

11. The 2nd Administrator/Protestor has similarly not placed before the court any material to support his case that the compensation related to developments he had made on the estate.

12. Consequently, this court finds that the said compensation formed part of the estate of the deceased and ought to have been distributed to the beneficiaries accordingly.

How should the estate be distributed 13. From the evidence on record, the deceased had two sons Stephen Kirimi who is the father of the parties herein and 4 others as stated at paragraph 1 above, and one Samson the husband of Anna Kinya Samson.

14. Section 38 of the Law of Succession Act Cap 160 Laws of Kenya provides:“Where an intestate has left a surviving child or children but no spouse, the net estate shall subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or shall be equally dived among the surviving children.”

15. Consequently, I find that the estate ought to be shared between the two sons. And since the two sons of the deceased are themselves deceased, the provisions of Section 41 of the Act permit distribution of the deceased sons’ shares to their beneficiaries.

16. From the foregoing analysis, the summons for confirmation of the grant, dated 20th January, 2017 and the protest filed on 29th January, 2021 are considered and determined in terms of the following orders:1. The compensation paid by the National Land Commission to the 2nd Administrator/Protestor forms part of deceased’s estate for distribution to all the beneficiaries in this cause2. LR. Ntima/Igoki/6204 shall be distributed as follows:i.0. 355 Ha to Anna Kinya Samsonii.There being no evidence to justify a larger share for the 1st Administrator/Applicant, the balance after the deduction of the area to be covered by the access road shall be distributed in equal shares to;a.Grace Catherine Ntinyarib.Lillian Karimi Stephenc.Roseline Makena Mutwirid.Mercy Kairuthi Kirimae.Erick Kimathi Kirimif.Muriithi R.W.Stephen3. LR. Ntima/Igoki/975 shall be distributed as follows:i.0. 173 Ha to Anna Kinya Samson -ii.The balance after the deduction of the area to be covered by the access road shall be distributed in equal shares to;a.Grace Catherine Ntinyarib.Lillian Karimi Stephenc.Roseline Makena Mutwirid.Mercy Kairuthi Kirimae.Erick Kimathi Kirimif.Muriithi R.W.Stephen4. It is further ordered that the share for Muriithi R.W.Stephen in both assets LR. Ntima/Igoki/6204 and LR. Ntima/Igoki/975 shall be registered in the name of Grace Catherine Ntinyari and the Deputy Registrar of this court until such a time as the said Muriithi R.W.Stephen shall renders accounts of the sums of money he received from the National Land Commission, as compensation on behalf of the estate.5. This matter shall be mentioned on 26th September, 2024 to confirm compliance with these orders, transmission and further orders6. No order for costs

DATED AT MERU THIS 29TH DAY OF FEBRUARY 2024WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor 1st Administrator/Applicant - Ms. Nelima for Nelima Associates Co. AdvocatesFor 2nd Administrator/Protestor - Mr. Ochieng for Okatch & Partners Advocates