[2017] KEHC 73 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 91 OF 2011

IN THE MATTER OF ESTATE OF SIMON ANAMPIU M'MURUGU (DECEASED)

RAEL KAARI M'ANAMPIU

ELIAS GITONGA WANAMPI........... PETITIONERS

VS

STANLEY MATHIU ANAMPIU ..

BENJAMIN KANYINYUI ANAMPIU

PETER GITONGA M'ANAMPIU........PROTESTORS

JUDGEMENT

The deceased person in this cause Simon Anampiu M'Murugu died on 3rd day of July1990 and was survived by

1. Rael Kaari — wife- widow aged 87 years

2. Stanley Mathiu — son

3. Benjamin Kanyinyui — son

4. Susan Mukomwathi —daughter

5. Florence Mukethi:- , daughter

6. Peter mutagia — son

7. Elias Gitonga — son

8. Cecilia Mukuba — daughter

9. Rose Kananu — daughter

He died intestate and the estate is made up of parcels of land No.s

a) Nyaki/Munitu/290 — 7. 0026 Ha

b) Kithoka/ Mwanka/26 — 2. 40 Ha

The deceased persons widow Rael Kaari and son Elias Gitonga filed petition seekingfor Grant of Letters of Administration which was made to them on 13th day ofNovember 2013. When Rael Kaari the widow applied for confirmation of grant vide application dated27th May 2014 consent for confirmation and distribution was signed by allbeneficiaries except Benjamin Kanyinyui, Peter Mutayia and Stanley Mathiu who filedaffidavit in protest sworn by Peter mutayia on 30th March 2015 objecting todistribution of the estate to their sisters susan Mukamwathi, Florence Mukethi,Cecilia Mukuba Anampiu Rose Kananu who were said to be all married and had theirown land.

It was claimed in the affidavit in protest that the deceased did not say that thedaughters get land from his estate but Peter Mutayia and his brothers wereagreeable to give them some potion of land.

He averred that if deceased daughters are given land the deceased sons born out ofwedlock would claim land from them.

He proposed that family members sit and discuss issue of distribution. The 1stAdministrator Rael Kaari died on 5th July 2015 and by an application dated 12th July2016, the 2nd Administrator applied that grant made to him jointly with Rael Kaari berevoked and another one issued to him and Florence Mukethi. In the supportingaffidavit to the application, Elias also applied that the grant that was to be made tohim and Florence jointly be confirmed and at paragraph 7 he proposed mode ofdistribution of the estate.

Peter Mutayia , Stanley Imathiu and Benjamin Kanyinyui testified in support of theprotest to confirmation and distribution saying that land parcel No.Nyaki/Muathu/290 should be shared between Stanley Imathiu, Elias Gitonga,Benjamin Kanyinyui and himself and No. Nyaki/Kithoka/26 to be shared by himself,Joshua Muriki, David Ikuetha, Julius Kaburu and Robert Mbaabu. He said his sisterswould each get 1/4 acre from their shares.

1st Protester said their mother was using entire parcel at Kithoka/26 before she grewold and they started using it. He said Cecilia Mukuba their sister used to stay withthe mother and used portions of land that belonged to their mother.

He said it was not justifiable to share No.290 equally. He said none of the siblingshad title to land.: He said it was not their fathers wish.that the daughters inheritland. He said David Ikutha his father's son and lives in Kaithe and was not shownwhere to live by the deceased. He. said Julius..Kaburu is his cousin; Robert is son tohis step father and Joshua Muriki.is grandson to the deceased and son to Stanleywho is alive. Stanley Imathiu said his father had not wished his daughters to inheritland but that they were ready to give them each 1/4 acre from their shares. He saidthat his father had 4 sons out of wedlock and they should be given land althoughthey had not made any claim.

Benjamin said that their sister Susan Stays on L.R. while the others Cecilia and RoseKananu stay on Kithoka/26. He supported proposal for distribution by PeterMutayia. He said the sisters were staying with their mother in L.R. Kithoka/26. Hesaid the other persons proposed to benefit are their uncle's son. The petitioner saidthe deceased didn't have child out of wedlock. He said the proposal made by himfor distribution should be adopted. He admitted that Joshua Muriuki stays on parcelNo. 26 on portion that is his father's share.

From the evidence on record and from affidavits filed by parties herein the issues fordetermination are whether the protesters have proved on a balance of probabilitiesthat their proposal for distribution serves the justice of the parties. It is conceded byElias Gitonga M'Anampiu that Joshua Muriki, son to Stanley Imathiu stays on parcelNo. Kithoka/26 on a portion that belongs to his father.

From the proposal for distribution of the said: parcel, the said portion should beidentified specified and removed from portion that is to be distributed to CeciliaMukuba and Rose Kananu.

For the distribution of parcel No. Nyaki/Munithu/290, the majori are supportingthe distribution as per paragraph 7 of the affidavit of Elias Gitonga M'Anampiu swornon 12th July 2016 and therefore the court adopts the same.

Certificate of confirmation and distribution to issue in accordance with the saidproposal. The protesters claimed that their father had children out of wedlock whowere entitled to inherit but it turned out the names given belonged to cousins ofprotesters. The said cousins didn't attend court and didn't swear affidavits makingany claims and it is, not understandable why the 3 protesters felt that their cousinsshould have priority inheriting from their father's estate than their sisters from thesame parcels. The protest is therefore dismissed. No orders as to costs.

HON A.ONG'INJO

JUDGE

31. 8.2017

Before Adwera-ong'injo

Penina — C/A

Mr Gikunda Anampiu Advocate Holding brief for Ayub Anampiu for

Objectors/Protestors.

Mr Ringera Advocate for Petitioner.

Court

Ruling Delivered, Dated and Signed in Court.

HON A.ONG'INJO

JUDGE