[2024] KEHC 541 (KLR)
The court found that, given the lack of consensus among beneficiaries and the practical challenges of forming a company or subdividing the properties under the Sectional Properties Act, the fairest solution was to distribute the two remaining properties—Plot No. 59 Kariobangi South and LR 209/9045 Kamukunji—equally...
Source-derived case information.
- Citation
- [2024] KEHC 541 (KLR)
- Parties
- Applicant: Nyagaitheri Mwangi; Respondent: Harrison Irungu Kuria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2249 of 2008
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Properties distributed equally between the two houses of the deceased.
- Judges
- SN Riechi
- Legal Topics
- Succession Distribution, Administration of Estates, Division of Matrimonial Property, Sectional Properties, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyagaitheri Mwangi
Applicant
Harrison Irungu Kuria
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the remaining estate properties should be subdivided, incorporated into a company, or sold and proceeds distributed among beneficiaries.
- 2 How to equitably distribute Plot No. 59 Kariobangi South and LR 209/9045 Kamukunji between the two houses of the deceased.
Ratio Decidendi
The court found that, given the lack of consensus among beneficiaries and the practical challenges of forming a company or subdividing the properties under the Sectional Properties Act, the fairest solution was to distribute the two remaining properties—Plot No. 59 Kariobangi South and LR 209/9045 Kamukunji—equally between the two houses of the deceased. This approach ensures each house receives an equal share, avoids further disputes, and brings finality to the administration of the estate. The court declined to impose subdivision or company formation due to the absence of unanimous consent and the potential for ongoing conflict among beneficiaries.
Court Disposition
Properties distributed equally between the two houses of the deceased.
Orders
- Plot No. 59 Kariobangi South to be shared equally between the house of Phyllis Wakanyi and the house of Nyagaitheri Mwangi.
- LR 209/9045 Kamukunji to be shared equally between the house of Phyllis Wakanyi and the house of Nyagaitheri Mwangi.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Zacharia Mulati Simiyu (Deceased) (Succession Cause 2249 of 2008) [2024] KEHC 541 (KLR) (Civ) (24 January 2024) (Judgment)
Neutral citation: [2024] KEHC 541 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Succession Cause 2249 of 2008
SN Riechi, J
January 24, 2024
Between
Nyagaitheri Mwangi
Administrator
and
Harrison Irungu Kuria
Administrator
Judgment
1. The deceased Kuria Gacheru at time of death had 2 wives (houses) each with children. They were Phyllis Wakanyi and Nyagaitheri Mwangi. The Petitioner filed this cause for the administration of his estate. On August 20, 2021 Ougo J. partially confirmed and distributed the estate as follows:
House of Phyllis Wakanyi1. Loc 13/Gitugi/19382. Loc 13/Gitugi/16373. Loc 13/Gitugi/12804. Loc 13/Gitugi/Matuto/T.295. Loc 13/Gitugi/T.306. Nyandarua/Geta/1065 whole
House of Nyagatheri Mwangi1. Loc 13/Gitugi/Matuto/T.312. Loc/Gitugi/Matuto/T.323. Loc /31/Gitugi/7444. 1st Floor she occupies with her family.
2. The house of Phyllis Wakanyi was represented by Harrison Irungu Kuria and Marriam Wanjiku represented the house of Nyagaitheri Mwangi. The only issue which was outstanding and for this Court is to determine the distribution of the two remaining assets viz:a.Plot No. 59 Kariobangi Southb.LR 209/9045 Kamukunji
3. By consent the parties were to file respective submissions on the preferred mode of distribution. Both parties filed their respective submissions. Mr. Kinuthia for the applicants submitted that:“the admission by 2nd Administrator that it was impossible to work with the applicant in paragraph 21 of the affidavit of protest, makes his proposals untenable and an exercise in futility as there will be no consensus amongst the beneficiaries. In the circumstances we submit that the proposal to subdivide the properties to the bare minimum possible unit under Sectional Properties Act and the incorporation of a Company should not be imposed or compelled on the beneficiaries. We rely on Re Estate of John Musambayi Katumanga Deceased [20141 eKLR where the learned judge dismissed a proposal for a trust or an incorporated company to facilitate distribution of the deceased estate for lack of consensus of all interested. He stated that such a proposal can only by the consent of all beneficiaries and there is no consensus in the matter.We submit that the applicant's alternative prayer that the properties be sold and the proceeds distributed equally amongst the beneficiaries is fair and just. The proposal will bring the matter to an end and each beneficiary will receive his/her entitlement under the trust”.
4. Mr. Ndegwa for the 2nd Administrator Harrison Irungu Kuria submitted:a.That in order to put the dispute at an end and to protect the legacy of the deceased, that the properties ought to be distributed amongst the beneficiary in accordance with the Sectional Property Act. that provides for sub-division of a building into units and/or apartments.b.That subdividing in the properties shall be an advantage to the beneficiaries as some of the beneficiaries directly own and/or use some of the premises.
5. It is not in dispute that part of the property was divided among the two houses by Ougo J. The parties were unable to agree on who gets which of the remaining 2 properties because they have different values. It is also clear that some of the property is developed with rental income. An order for both parties to collect rent had not been honoured. In the circumstances, I find that forming a company where the beneficiaries are shareholders may have its challenges just as division of the units under the Sections Property Act. I therefore confirm the summons for two properties as follows: 1. Plot No. 59 Kariobangi South:Equally between the house of Phyllis Wakanyi – Represented by Harrison Irungu Kuria and the house of Nyagaitheri represented by Marriam Wanjiku.
2. LR 209/9045 Kamukunji:Equally between the house of Phyllis Wakanyi – Represented by Harrison Irungu Kuria and the house of Nyagaitheri represented by Marriam Wanjiku
DATED AT NAIROBI THIS 24TH DAY OF JANUARY 2024…………………………..S. N. RIECHIJUDGE