[2019] KEHC 9889 (KLR)
The court found that the properties confirmed by the District Land Adjudication and Settlement Officer and Demarcation Officer formed the estate of the deceased. Applying section 40 of the Law of Succession Act, the court held that the estate, comprising 19.02 acres, should be distributed equally among the 22 units...
Source-derived case information.
- Citation
- [2019] KEHC 9889 (KLR)
- Parties
- Applicant: Zipporah Gacheke; Applicant: Margaret Gacheri; Respondent: Naomi Nkoyai Kiburi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 583 of 2010
- Procedural Posture
- Succession Cause / Final Judgment
- Outcome
- Estate distributed according to section 40 of the Law of Succession Act; specific parcels allocated to beneficiaries as detailed in the judgment.
- Judges
- A Mabeya
- Legal Topics
- Succession of Estates, Distribution of Property, Polygamous Estates, Law of Intestacy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah Gacheke
Applicant
Margaret Gacheri
Applicant
Naomi Nkoyai Kiburi
Respondent
Procedural Posture
Succession Cause / Final Judgment
Legal Issues
- 1 Whether the properties listed formed part of the deceased's estate for distribution.
- 2 How the estate of a polygamous deceased should be distributed among widows and children under section 40 of the Law of Succession Act.
- 3 Whether the protestor is entitled to a greater share due to her contribution and cohabitation with the deceased.
Ratio Decidendi
The court found that the properties confirmed by the District Land Adjudication and Settlement Officer and Demarcation Officer formed the estate of the deceased. Applying section 40 of the Law of Succession Act, the court held that the estate, comprising 19.02 acres, should be distributed equally among the 22 units (3 widows and 19 children), with each unit entitled to approximately 0.864 acres. The court considered the specific parcels on which the widows had been settled and the protestor's longer cohabitation and contribution but ultimately applied the statutory formula for distribution. The property F/No. 5118, registered in the protestor's name, was excluded from the estate. The...
Court Disposition
Estate distributed according to section 40 of the Law of Succession Act; specific parcels allocated to beneficiaries as detailed in the judgment.
Orders
- The estate comprising 19.02 acres is to be distributed equally among the 22 beneficiaries (3 widows and 19 children), each receiving approximately 0.864 acres.
- Specific land parcels are allocated to named beneficiaries as set out in the judgment.
Full Case Text
Judgment text and source record
109 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 583 OF 2010
IN THE MATTER OF THE ESTATE OF STEPHEN KIBURI MUCIARIA (DECEASED)
ZIPPORAH GACHEKE ……………………………………….… 1ST PETITIONER
MARGARET GACHERI ……..………………………………...... 2ND PETITIONER
VERSUS
NAOMI NKOYAI KIBURI …….…...…….………..……………….…. PROTESTOR
F I N A L J U D G M E N T
1. On 25th October 2018, this court delivered a partial judgment whereby it found that there was no evidence that the properties put forward by the combatants in this Cause formed part of the estate. The court therefore directed that the parties do provide such evidence to assist the court in distributing the estate.
2. On 5th December 2018, the District Land Adjudication and Settlement Officer, Tigania East District and Demarcation Officer Akaiga Adjudication Section filed letters in court confirming the properties that were owned by the deceased to be as follows: -
Kiguchwa Adjudication Section
a) Land Parcel No. 1724 - 5 acres
b) Land Parcel No. 1835 - 0. 40 acres
c) Land Parcel No. 1914 - 3 acres
d) Land Parcel No. 2063 - 3. 50 acres
e) Land Parcel No. 2355 - 0. 70 acres
f) Land Parcel No. 2430 - 0. 20 acres
g) Land Parcel No. 2817 - 1. 06 acres
h) Land Parcel No. 2785 - 0. 10 acres
i) Land Parcel No. 3676 - 0. 50 acres
j) Land Parcel No. 3685 - 0. 45 acres
k) Land Parcel No. 2127 - 0. 05 acres
l) Land Parcel No. 2470 - 0. 60 acres
Akaiga Adjudication Section
a) F/No. 4028 - 0. 96 acres
b) F/No. 5117 - 1. 50 acres
c) F/No. 5119 - 1 acre
3. It was confirmed that F/No. 5118 measuring 7. 37 acres is recorded as owned by Naomi Nkoyai. In this regard, that property is not available for distribution. Therefore, the total acreage available for distribution is 19. 02 acres.
4. As was found in the partial judgment, the deceased was survived by 3 widows and 19 children as follows: -
Widows
a) Naomi Nkoyai
b) Zipporah Gacheke
c) Margaret Gacheri
Children
a) Rahab Kanario
b) Esther Mukubu
c) Benjamin Kimathi
d) Rebbecca Kagwiria
e) Ayub Mwiti
f) Josephin Kendi
g) Doreen Karambu
h) Laban Mutethia
i) Magdalene Nkirote
j) George Kaberia
k) Vivian Kananu
l) Lucy Makena
m) Jasper Collin Mugambi
n) Eric Murungi
o) Nicholas Mutwiri
p) Samuel Thuranira
q) Jesse Mwendwa
r) Polly Mukiri
s) Agnes Ntinyari
5. While the petitioners were categorical as to where they had been settled by the deceased, the objector did not specify where she was settled. Margaret Gacheri was settled on plot no. 1914 while Zipporah Gacheke Mituru was settled on plot no. 3676.
6. In distributing the estate, I propose to take into consideration the foregoing. I will also consider the fact that the protestor lived the longest with the deceased and that therefore most of the estate properties were acquired with her substantial contribution as found in the partial judgment.
7. Since the deceased was polygamous, the provisions applicable in the distribution of his estate is section 40 of the Law of Succession Act.That section requires that the estate be distributed equally with each child representing a unit. Further, every surviving widow represents an independent and separate unit.
8. The acreage being 19:02 acres and the beneficiaries being 22, each beneficiary will be entitled to approximately 0. 864 acres.
9. In view of the foregoing, I am of the view that the estate be distributed as follows: -
Kiguchwa Adjudication Section
a) Land Parcel No. 1742 - 5 acres
Naomi Nkoyai - (0. 864)
Rahab Kanario - (0. 864)
Esther Mukuru - (0. 864)
Benjamin Kimathi - (0. 864)
Rebecca Kagwiria - (0. 864)
Ayub Mwiti - (0. 68)
b) Land Parcel No. 2817 - 1. 06 acres
Josephine Kendi - (0. 864)
Ayub Mwiti - (0. 196)
c) Land Parcel No. 2063 - 3. 5 acres
Doreen Karambu - (0. 864)
George Kaberia - (0. 864)
Laban Mutethia - (0. 864)
Vivian Kananu - (0. 864)
d) Land Parcel No. 3685 - 0. 45 acre
Jasper Collin - whole
e) Land Parcel No. 2470 - 0. 60 acre
Naomi Nkoyai - whole
f) Land Parcel No. 2355 - 0. 70 acre
Magdalene Nkirote - whole
g) Land Parcel No. 1835 - 0. 40 acre
Jasper Collin Mugambi - whole
h) Land Parcel No. 3676 - 0. 50 acre
Zipporah Gacheke - whole
i) Land Parcel No. 2430 - 0. 20 acre
Zipporah Gacheke - whole
j) Land Parcel No. 2127 - 0. 05 acre
Zipporah Gacheke - whole
k) Land Parcel No. 1914 - 3 acres
Margaret Gacheri
Polly Mukiri
Agnes Ntinyari
l) Land Parcel No. 2785 - 0. 10 acre
Zipporah Gacheke - whole
Akaiga Adjudication Section
a) F/No. 4028 - 0. 96 acre
Eric Murungi
b) F/No. 5117 - 1. 50 acre
Nicholas Mutwiri - 0. 864 acre
Samuel Thuranira - 0. 64 acre
c) F/No. 5119 - 1 acre
Samuel Thuranira - 0. 200
Jesse Mwenda - balance
d)A/C NO. [particulars withheld] Barclays Bank held jointly with Naomi Nkoyai
Naomi Nkoyai by dint of the principle of survivorship.
DATEDand DELIVERED at Meru this 21st day of February, 2019.
A. MABEYA
JUDGE