[2020] KEHC 2496 (KLR)
The court held that, in accordance with the Law of Succession Act and established precedent, the balance of Kshs. 530,000 (plus any interest) held by the Public Trustee should be divided equally among the deceased's three surviving children. The court acknowledged the principle of equality in distribution as set out...
Source-derived case information.
- Citation
- [2020] KEHC 2496 (KLR)
- Parties
- Applicant: Lucy Wairimu Ndirangu; Respondent: M’Itonga M’Ituruchiu; Respondent: Julius Kinyua Mutonga
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 143 of 2010
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate Funds
- Outcome
- Application for equal distribution of the estate balance among the deceased's children allowed.
- Judges
- F Gikonyo
- Legal Topics
- Intestate Succession, Distribution of Estate, Equal Sharing Among Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wairimu Ndirangu
Applicant
M’Itonga M’Ituruchiu
Respondent
Julius Kinyua Mutonga
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate Funds
Legal Issues
- 1 Whether the balance of Kshs. 530,000 held by the Public Trustee should be distributed equally among the deceased's children.
- 2 Whether the principle of equal distribution under the Law of Succession Act applies in this case.
Ratio Decidendi
The court held that, in accordance with the Law of Succession Act and established precedent, the balance of Kshs. 530,000 (plus any interest) held by the Public Trustee should be divided equally among the deceased's three surviving children. The court acknowledged the principle of equality in distribution as set out in Sections 35, 38, and 40 of the Act, and noted that while there are statutory provisions that may allow for deviation in certain circumstances, none were shown to apply in this case. Therefore, the statutory mandate for equal distribution was enforced.
Court Disposition
Application for equal distribution of the estate balance among the deceased's children allowed.
Orders
- The balance of Kshs. 530,000 (together with interest, if any) held by the Public Trustee shall be divided equally among Brenda Kathure, Linnet Kananu, and Kennedy Kiogora.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 143 OF 2010
IN THE MATTER OF THE ESTATE OF THE LATE STANLEY MBURUGU M’ITONGA – DECEASED
LUCY WAIRIMU NDIRANGU.............................APPLICANT
VERSUS
M’ITONGA M’ITURUCHIU
JULIUS KINYUA MUTONGA........................ PETITIONERS
RULING
1. On 19/11/2018 the parties herein entered into a consent and agreed that Kshs. 300,000 shall be paid to the widow of the deceased, Lucy Wairimu Ndirangu from the public trustee Embu. They also stated that the said account was unfrozen for the purpose of the order.
2. However, Mrs Ntaragwi advocate of the applicant/protestor indicated that the money that was being held at the Public trustee is Kshs. 830,000 and after the widow gets the Kshs. 300,000 a balance will remain. On 8/7/2020 she made an application that the balance of Kshs. 530,000 and interest be shared equally between the 3 children of the deceased.
3. It was held in In Re Estate of John Musambayi Katumanga – deceased [2014] eKLR Musyoka J, that:-
“The spirit of Part V, especially Sections 35, 38 and 40, is equal distribution, of the intestate estate amongst the children of the deceased. There have been debates on whether the distribution should be equal or equitable. My reading of these provisions is that they envisage equal distribution for the word used in Sections 35(5) and 38 is ‘equally’ as opposed to ‘equitably’. This is the plain language of the provisions. The provisions are in mandatory terms – the property “shall … be equally divided among the surviving children.” Equal distribution is envisaged regardless of the ages, gender and financial status of the children.”
4. But, I wish to advance the debate on some quite different angle. While courts should be guided by the principle of equality in distribution of the estate of the deceased, they should be aware of other situations provided in the law of Succession Act, for instance, in section 26, 28 and 42 which may temper the symmetry. Just stating.
5. That notwithstanding, in light of the above, I order that the balance of Kshs. 530,000 (together with interest, if any) held by the Public Trustee be divided equally among the deceased’s surviving children, namely;
I. Brenda Kathure
II. Linnet Kananu
III. Kennedy Kiogora
6. It is so ordered
Dated, signed and delivered at Meru this 15th day of October 2020
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F. GIKONYO
JUDGE
Representation
Mrs. Ntarangwi for objector
Mwiti for petitioners
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F. GIKONYO
JUDGE