[2002] KEHC 1007 (KLR)
The court held that the Laws of Succession Act, which came into operation on 1st July 1981, does not apply retrospectively to estates where the deceased died before its commencement. Since the deceased died in 1953, the applicable law is Kikuyu Customary Law, under which the estate is divided equally between the...
Source-derived case information.
- Citation
- [2002] KEHC 1007 (KLR)
- Parties
- Applicant: Joseph Njuguna Kiiru; Respondent: Charles Kamau Kirru; Respondent: James Kiramba Kiiru; Respondent: Peter Muhia Kiiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2487 of 1996
- Procedural Posture
- Succession Cause / Ruling
- Outcome
- Estate to be divided equally between the two houses as per Kikuyu Customary Law.
- Legal Topics
- Succession of Estates, Customary Law Application, Retrospective Legislation, Distribution of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njuguna Kiiru
Applicant
Charles Kamau Kirru
Respondent
James Kiramba Kiiru
Respondent
Peter Muhia Kiiru
Respondent
Procedural Posture
Succession Cause / Ruling
Legal Issues
- 1 Whether the estate property L.R. No. Gatamaiyu/Kagwe/167 should be divided according to Section 40 of the Laws of Succession Act or Kikuyu Customary Law.
- 2 Whether the Laws of Succession Act applies retrospectively to estates where the deceased died before its commencement.
Ratio Decidendi
The court held that the Laws of Succession Act, which came into operation on 1st July 1981, does not apply retrospectively to estates where the deceased died before its commencement. Since the deceased died in 1953, the applicable law is Kikuyu Customary Law, under which the estate is divided equally between the houses of the deceased's wives, irrespective of the number of children in each house. The court found that the property had already been divided in accordance with this principle in 1983 and saw no reason to disturb that arrangement.
Court Disposition
Estate to be divided equally between the two houses as per Kikuyu Customary Law.
Orders
- Land parcel L.R. No. Gatamaiyu/Kagwe/167 shall be divided equally between the two houses of the deceased.
- No order as to costs.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI H.C. SUCCESSION CAUSE NO. 2487 OF 1996
IN THE MATTER OF THE ESTATE OF KIIRU MUHIA “A” (DECEASED)
R U L I N G
The issue herein to be determined is whether the only property of the estate i.e L.R. No. Gatamaiyu/Kagwe/167 be divided as per the provisions of Section 40 of the Laws of Succession Act or as per Kikuyu Customary Law. The facts are almost agreed. The deceased died in the year 1953. He had two wives, the first wife Wambui Lea Kiiru had one son namely Joseph Njuguna Kiiru and the second wife Nyambura Kiiru had three sons namely: Charles Kamau Kirru, James Kiramba Kiiru and Peter Muhia Kiiru.
It is also not controverted that in the year 1983 the land was sub-divided equally amongst the two houses as per the Kikuyu customary Law. I also take judicial notice that the deceased died in 1953 and provisions of the present Laws of Succession Act cannot apply to his estate. The contention of Mr. Mbigi the learned counsel for the Petitioner/Respondents to the effect that Section 40 of the said Act should be applied to the estate cannot be accepted. The Act came into operation only on 1st July, 1981 and its provisions cannot be applied retrospectively specifically taking into consideration provisions of section 1 thereof.
In the Restatement of African Law 2 (The law of Succession) by Eugene Contran (on page 13) the house of each wife gets an equal share of the properties irrespective of the number of children in each house. That is what was done in 1983 and I do not intend to upset the same for reasons abovementioned herein. I therefore direct that the Land bearing L. R. No. Gatamaiyu/Kagwe/167 be divided equally between the two houses. I shall not make any order on costs considering the circumstances of the case.
Dated and delivered at Nairobi this 27th day of September, 2002.
K. H. RAWAL
JUDGE.