[2019] KEHC 6616 (KLR)
The court found that both the administrator and the protestors had largely agreed on the list of beneficiaries and that each was entitled to a share of the estate. The evidence showed that one beneficiary, Billiah Kanyua Karangu, was deceased and should not receive a share, and that Nahashon Miriti Samuel's family...
Source-derived case information.
- Citation
- [2019] KEHC 6616 (KLR)
- Parties
- Applicant: Eliphas Nyaga Samuel; Respondent: Joy Kathomi; Respondent: Jane Gatakaa; Respondent: Rose Wanja; Respondent: Sammy Kirimi Njeru; Respondent: Smith Kimathi Njeru
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 47 of 2016
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Grant confirmed as per protestors' proposal; estate to be distributed equally among surviving beneficiaries.
- Judges
- BB Limo
- Legal Topics
- Succession, Intestate Distribution, Confirmation of Grant, Protest to Distribution, Dependants Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphas Nyaga Samuel
Applicant
Joy Kathomi
Respondent
Jane Gatakaa
Respondent
Rose Wanja
Respondent
Sammy Kirimi Njeru
Respondent
Smith Kimathi Njeru
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the proposed distribution of the deceased's estate is fair and in accordance with the Law of Succession Act.
- 2 Whether the protestors' objections to the administrator's proposal should be upheld.
- 3 How the estate should be distributed among the surviving dependants.
Ratio Decidendi
The court found that both the administrator and the protestors had largely agreed on the list of beneficiaries and that each was entitled to a share of the estate. The evidence showed that one beneficiary, Billiah Kanyua Karangu, was deceased and should not receive a share, and that Nahashon Miriti Samuel's family had already benefitted from a gift inter vivos. The court applied Section 38 of the Law of Succession Act, which mandates equal distribution among surviving dependants where there is no surviving spouse. The court determined that the protestors' proposal reflected a fair and practical distribution, as it avoided uneconomical fragmentation and was accepted by most parties. The...
Court Disposition
Grant confirmed as per protestors' proposal; estate to be distributed equally among surviving beneficiaries.
Orders
- The grant issued on 7th February, 2017 is confirmed as per paragraph 7 of the affidavit of Joy Kathomi sworn on 3rd July, 2018.
- The estate properties are to be distributed among the surviving beneficiaries in accordance with the protestors' proposal.
Full Case Text
Judgment text and source record
118 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
MISC. SUCCESSION APPLICATION NO. 47 OF 2016
IN THE MATTER OF THE ESTATE OF THE LATE MURUNGI
KIUGU alias SAMUEL M'MURUNGI KIUGU (DECEASED)
ELIPHAS NYAGA SAMUEL....PETITIONER/APPLICANT
VERSUS
JOY KATHOMI...........................................1ST PROTESTOR
JANE GATAKA...........................................2ND PROTESTOR
ROSE WANJA..............................................3RD PROTESTOR
SAMMY KIRIMI NJERU...........................4TH PROTESTOR
SMITH KIMATHI NJERU.........................5TH PROTESTOR
J U D G M E N T
1. This cause relates to the estate of the late MURUNGI KIUGU alias SAMUEL M'MURUNGI KIUGU (deceased) who died intestate on 3rd July 1998 domiciled at Mugumango.
2. The Petitioner/Administrator, ELIPHAS NYAGA SAMUEL was appointed the administrator of the estate of deceased herein on 7th February, 2017 after the revocation of the earlier grant issued via Runyenjes Principal Magistrate's Court Succession Cause No. 119 of 2015. The deceased left the following dependants surviving him namely:-
i. Jenniffer Ntue Ruria - (deceased)
ii. Billiah Kanyua Karangu
iii. Nahashon Miriti Samuel - (deceased)
iv. Susan Ithiru David
v. Belassis Nyaga Samuel - (deceased)
vi. Timothy Njeru Samuel - (deceased)
vii. Josephine Ithiru Samuel
viii. Danstun Murugi Samuel - (deceased)
ix. Eliphas Nyaga Samuel
x. Caroline Kagendo Samuel
xi. Dinah Ithima Samuel
3. The properties listed as comprising the estate are as follows namely:-
a) Muthambi/U.Karimba/130
b) Muthambi/U.Karimba/318
c) Muthambi/S.Mugumango/917
d) Muthambi/S.Mugumango/813
4. The administrator has moved this court vide Summons for Confirmation of Grant dated 26th March 2018 to have the grant issued to him confirmed proposing to have the estate distributed as follows:-
(A) L.R. No. Muthambi/U.Karimba/130 - (Approximately 1. 48. acres);
a) Eliphas Nyaga Samuel - 0. 30 acres
b) Esther Karimi Nyaga - 0. 30 acres
Erick Mutwiri Murungi
c) Sammy Mutembei Nyaga 0. 3 acres jointly
(d)Sammy Kirimi Njeru
Smith Kimathi Njeru
Rose Wanja
Jane Gatakaa 0. 30 acres jointly
Joy Kathomi
(e) Hellen Nkari Nahashon - 0. 30 acres
(B) L.R. No. Muthambi/U/Karimba/318 (measuring approximately 2. 7 acres).
a) Hellen Nkari Nahashon - 0. 9 acres
b) Josphine Ithiru Mutegi
Dinnah Ithima M'Murungi
Susan Ithiru David 0. 9 acres jointly
Billah Kanyua Karangu
Caroline Kagendo Samuel
(c) Sammy Kirimi Njeru
Smith Kimathi Njeru 0. 9 acres
Rose Wanja
Jane Gatakaa
Joy Kathomi
(C) L.R No. Mwimbi/S.Mugumango/917 (measuring approx. 1. 58 acres)
(a) Eliphas Nyaga Samuel - 0. 4 acres
(b) Esther Karimi Nyaga - 0. 4 acres
(c) Sammy Mutembei Nyaga
Erick Mutwiri Murungi - 0. 4 acres jointly
(d) Sammy Kirimi Njeru
Smith Kimathi Njeru
Rose Wanja - 0. 4. acres jointly
Jane Gatakaa
Joy Kathomi
(D) L.R. No. Mwimbi/S. Mugumango/813- (Approx. 5 acres)
a) Eliphas Nyaga Samuel - 1. 25 acres
b) Esther Karimi Nyaga - 1. 25 acres
c) Sammy Mutembei Nyaga
Erick Mutwiri Murungi - 1. 25 acres jointly
(d)Sammy Kirimi Njeru
Smith Kimathi Njeru
Rose Wanja - 1. 25 acres jointly
Jane Gatakaa
Joy Kathomi
4. The proposal met some resistance from Joy Kathomi, Jane Gatakaa, Rose Wanja, Sammy Kirimi Njeru and Smith Kimathi Njeru who filed an affidavit of protest through Joy Kathomi sworn on 3rd July 2018. The protestors' main bone of contention is that Billiah Kanyua Karangu is now deceased and cannot be given a share. They also proposed that the children of Timothy Njeru (a deceased son of deceased in this cause) be settled in one parcel instead of fragmenting the estate into uneconomical units. They have made the following proposal on the distribution of estate.
(A) L.R. Mwimbi/S.Mugumango/813- (measuring approx 5 acres)
i. Eliphas Nyaga Samuel - 1. 25 acres
ii. Esther Karimi Nyaga - 1. 25 acres
iii. Sammy Mutembei Nyaga - 1. 25 jointly
Erick Mutwiri Murungi
(iv) Sammy Kirimi Njeru
Smith Kimathi Njeru
Rose Wanja 1. 25 jointly
Jane Gatakaa
Joy Kathomi
(B) L.R No.Muthambi/U.Karimba/130 (measuring approx 1. 48 acres)
Sammy Kirimi Njeru
Smith Kimathi Njeru
Rose Wanja whole jointly
Jane Gatakaa
Joy Kathomi
(C) L.R No. Muthambi/U.Karima/318 (Approximately 2. 7 acres)
i. Susan Ithiru
ii. Josephine Ithiru
iii. Caroline Kagendo jointly
iv. Dinah Ithima
(D) L.R. Mwimbi/S. Mugumango/917 (Apprpx 1. 58 acres)
i. Eliphas Nyaga Samuel - 0. 53 acres
ii. Esther Karimi Nyaga - 0. 53 acres
iii. Sammy Mutembei Nyaga
Erick Mutwiri Murungi - 0. 53 acres
5. This court has considered both proposals by both sides. I have also considered the evidence tendered during the hearing of the protest canvassed through viva voce evidence. What has come out clearly is that despite the protests filed the parties in this cause have majorly agreed on who the beneficiaries are and that each beneficiary is entitled to a share. I have noted from the evidence tendered the late Nahashon Miriti Samuel benefitted from a gift inter vivos from the deceased herein in his lifetime and therefore his family are not laying a claim in the estate herein. It also transpired during trial that one of the named beneficiaries Billiah Kanyua Karangu is now deceased. That means that the number of children of the deceased to benefit are 8 or eight units. The provisions of Section 38 of Law of Succession Actprovides that an estate of a deceased person dying instate without a surviving spouse should be distributed equally among all the surviving dependants.
6. The estate, as observed above comprises the following properties namely;
a) L.R No. Muthambi/U. Karimba/130 - 1. 56 acres
b) L.R No. Muthambi/U.Karimba/318 - 2. 7 acres
c) L.R. No. Mwimbi/S. Mugumango/917 - 1. 56 acres
d) L.R. No. Mwimbi/S . Mugumango/813 - 4. 9 acres
Total 10. 77 acres
A simple calculation will reveal that each unit/beneficiary is entitled to approximately 1. 3 acres. It is therefore clear that from the two proposals the proposal by the protestors is largely a reflection of a fair distribution of the deceased because really the daughters have foregone their entitlement (by almost half an acre) and one would have expected the administrator duly represented by counsel to grab the offer with both hands. This court is minded to give the members of the family a chance to live cohesively and peacefully and it is on that basis that I am inclined to confirm the grant issued on 7th February, 2017 which I hereby do as per paragraph 7 of the affidavit of Joy Kathomi sworn on 3rd July, 2018.
Dated, signed and delivered at Chuka this 18th day of June, 2019.
R.K. LIMO
JUDGE
18/6/2019
Judgment signed, dated and delivered in the open court in presence of Kijaru holding brief for Murithi for Petitioner and in presence of 3rd and 4th protestors.
R.K. LIMO
JUDGE
18/6/2019