[2019] KEHC 6496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO. 227 OF 2013

RE ESTATE OF UJETHA NYAMBURA WAWERU alias

EUJESTA NYAMBURA PARRASIO WAWERU (DECEASED)

ORESTE MARIGA PAKRASIO...............1ST PETITIONER

JOSEPH KAMWARO B. WAWERU........2ND PETITIONER

VERSUS

HANNAH WAMBUI WAWERU......................PROTESTOR

JUDGMENT

1. Ujetha Nyambura Waweru (hereafter the deceased) died intestateon 27th April 1999.

2. A dispute has arisen over the distribution of her free estate. The only asset seems to be Loc. 11/Maragi/1193/18,a plot of land in Mukuyu area (hereafter the suit property).

3. I recorded viva voce evidence. The following facts are not in dispute: That the deceased was the mother to the two petitioners; that the protestor, Hannah Wambui Waweru is the co-wife of the deceased; and, that they were both married to the late Pakrasio Waweru Kinyoro.

4. The other uncontested fact is that during the lifetime of their deceased husband, he subdivided the suit property into two unequal portions: the petitioners’ mother was given the larger portion identified as “B”. The protestor was gifted the other portion identified as “A”. On the original plot are erected dwelling houses or rooms.

5. When the petitioners filed the cause, they described the property as “Loc. 11/Maragi/1193/18-half share ½”.They did not name the protestor as a beneficiary. To be fair to the petitioners, the protestor had renounced her right. She testified that she is illiterate and was misled to do so. When she discovered the erroneous details in the petition, she lodged her protest.

6. The petitioners’ gripe as I understood it is that the protestor has erected a fence or boundary wall between the sub-plots A and B thus blocking their tenants from accessing some rooms. They said the wall blocks a corridor.

7. The retort by the protestor is that sub-plot A was formally transferred to her; and, that she has not encroached at all into sub-plot B.

8. I find from the undisputed facts that sub-plot A of the suit property was gifted inter vivos and belongs exclusively to the protestor, Hannah Wambui Waweru. From the protestor’s exhibits 1and2, it is clear that an approval for partition and transfer of each sub-plot to each of the two widows was granted by the local authority. The protestor has been paying rates for her portion to Murang’a County. That position is confirmed by the petitioners’ own exhibits produced as Defence exhibit (bundle) 1.

9. I thus readily find that sub-plot A does not comprise the free estate of Ujetha Nyambura Waweru (deceased). Secondly, it is obvious that the suit property is a town plot with dwelling units. The sub-division of such a small plot presents practical difficulties to the existing structures.

10. It may be true that the protestor’s boundary wall has blocked some access for the petitioners’ tenants. But I received no clear evidence or survey plans to show the wall has encroached on her co-wife’s sub-plot B. There is accordingly no legal or evidential basis to order her to demolish it.

11. The final orders shall be as follows-

i)That Sub-Plot A of the suit property was gifted inter vivos and belongs exclusively to the protestor, Hannah Wambui Waweru.

ii)That for the avoidance of doubt, Sub-Plot A does not comprise the free estate of Ujetha Nyambura Waweru (deceased).

iii)That I decline to order the boundary wall erected by the protestor to be demolished.

iv)That the grant shall be confirmed as follows: that Sub-Plot B only of Loc. 11/Maragi/1193/18shall devolve in equal shares to Oreste Mariga Pakrasio, Joseph Kamwaro B. Waweru, Charles Kamau Waweru and Francis Waweru Gakara.

v)That in the interests of justice, there shall be no order on costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 24th day of June 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:

The petitioners (in person).

The protestor (in person).

Ms. Dorcas and Ms. Elizabeth, Court Clerks.