[2018] KEHC 3660 (KLR)
The court found that the petitioner’s proposed distribution was not in accordance with the principle of equality as required by both Meru customary law and the Law of Succession Act. The justification for giving Kenneth Murungi M’Muthara a larger share on the basis of a depression in the land was found to be...
Source-derived case information.
- Citation
- [2018] KEHC 3660 (KLR)
- Parties
- Applicant: Celestino Kinegeni M’Muthara; Respondent: Grace Kaari Njeru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 121 of 1989
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant confirmed; estate distributed as per protestor's proposal.
- Judges
- F Gikonyo
- Legal Topics
- Succession, Estate Distribution, Customary Law, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Celestino Kinegeni M’Muthara
Applicant
Grace Kaari Njeru
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the proposed distribution of the estate is fair and equitable under the applicable law and customs.
- 2 Whether the portion of land allocated to Kenneth Murungi M’Muthara is justified on the basis of alleged physical depression and undevelopability.
- 3 Which law governs the distribution of the estate of a person who died before the commencement of the Law of Succession Act.
Ratio Decidendi
The court found that the petitioner’s proposed distribution was not in accordance with the principle of equality as required by both Meru customary law and the Law of Succession Act. The justification for giving Kenneth Murungi M’Muthara a larger share on the basis of a depression in the land was found to be unsubstantiated, as the official report from the County Physical Planner and District Surveyor confirmed that the land in question had no depression and was developable. The court held that, since the deceased died before the commencement of the Law of Succession Act, the applicable law was the written laws and customs in force at the date of death, but the administration should...
Court Disposition
Grant confirmed; estate distributed as per protestor's proposal.
Orders
- The estate is to be distributed as follows: Celestino Kinegeni M’Muthara – 0.18 acres; Kenneth Murungi M’Muthara – 0.32 acres; Grace Kaari Njeru – 0.20 acres; Kenneth Micheni M’twaiti – 0.22 acres.
- The grant is confirmed on the above terms.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 121 OF 1989
In The Matter of the Estate of the Leah Karimi Alias Leah Zacharia (Deceased)
CELESTINO KINEGENI M’MUTHARA......................PETITIONER
Versus
GRACE KAARI NJERU....................................................PROTESTOR
JUDGMENT
Distribution of the estate
[1] This cause relates to the estate of Leah Karimi alias Leah Zacharia (deceased). She was survived by:
1. Zacaharia M’Muthara Ngajiu – widower (deceased)
2. Celestino Kinegani – son
3. Herodion Miti – son (deceased)
4. Joanes Njeru – son (deceased)
5. Kenneth Murungi – son
6. Sarah Ithiru Riungu – daughter (deceased)
The share of Herodian Miti and Joanes Njeru is being taken by Kenneth Micheni M’Twaiti and Grace Kaari respectively.
[2] The estate comprises of LR NO. MWIMBI/CHOGORIA/291. The petitioner who is also the administrator on 22nd February 2017 filed an application seeking confirmation of the grant where he proposed that the estate be distributed as follows:
i. Celestino Kinegeni M’Muthara – 0. 18 Acres
ii. Kenneth Murungi M’Muthara – 0. 42 Acres
iii. Grace Kaari Njeru – 0. 10 Acres
iv. Kenneth Micheni M’twaiti – 0. 22 Acres
[3] A protest was filed thereto and main ground was that the distribution was not fair and equitable. She proposed that the estate be distributed as follows:
i. Celestino Kinegeni M’Muthara – 0. 18 Acres
ii. Kenneth Murungi M’Muthara – 0. 32 Acres
iii. Grace Kaari Njeru – 0. 20 Acres
iv. Kenneth Micheni M’twaiti – 0. 22 Acres
[4] The petitioner argued in support of her proposal that he has given Kenneth Murungi a larger share because that portion of land thereto has a depression. On 1st March 2018, this court directed that the district physical planner and survey, Tharaka Nithi County, to visit the estate and establish: (1) whether the portion of land measuring approximately 0. 42 acres being occupied by the family of the late Herodian Miti has a depression, and (2) if so, the location and size of the depression; and (3) whether the depression makes or does not make the land undevelopable. On 16th July 2018, the County Physical Planner, Tharaka Nithi and District Surveyor, Meru South filed their report with their observations. They stated that the 0. 42 Acres has no depression and is developable and the occupant of the parcel can erect a retention wall along the parcel boundary to prevent soil erosion.
[5] The deceased died in 1972 and according to Section 2 (2) of the Law of Succession Act:
“(2) The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.”
[5] A reading of Cotran Eugene, Restatement of African Law: 2 Kenya II The Law of Succession, Sweet & Maxwell at page 30reveals thataccording to Meru customs the estate ought to be divided equally amongst the sons. In any case, the law of Succession Act reinforces the principle of equality. Looking at the mode of distribution suggested by the petitioner, I see mischief as it is does not adhere to the principle of equality, and misrepresented that the 0. 42 Acres have a depression that makes it undevelopable. See report by the planner and surveyor. The petitioner and protestor, however, seem to agree that the family of Herodian Miti should get a slightly larger share than the rest. The proposal by the protestor seems fair and reasonable given the facts of the case.
[6] Consequently, I order that the estate to be distributed as follows:
i. Celestino Kinegeni M’Muthara – 0. 18 Acres
ii. Kenneth Murungi M’Muthara – 0. 32 Acres
iii. Grace Kaari Njeru – 0. 20 Acres
iv. Kenneth Micheni M’twaiti – 0. 22 Acres
[7] The grant is confirmed on the above terms. I make no orders as to costs, for this is a succession matter involving close family members.
Dated, signed and delivered in open court at Meru this 8th day of October 2018
........................
F. GIKONYO
JUDGE
In the presence of:
Mr. Kitheka advocate for Petitioner
Mrs. Ntarangwi advocate for Mr. Kiogora for Protestor
.......................
F. GIKONYO
JUDGE