[2014] KEHC 5487 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 1736 OF 2004

AND

IN THE MATTER OF JEDEL KAMAU GITHUBAI – DECEASED

RULING

The Summons dated 7th September 2007 is up for determination. It seeks confirmation of the grant of probate of written will issued on 10th December 2004. The personal representative prays that the estate of the deceased be distributed as per his will made on 13th February 2002.

According to the will, the deceased proposed distribution of his property known as Laikipia/Marmanet/190, seven donkeys and four cows. Clause 3 of the will shared out Laikipia/ Marmanet /190 amongst the children as follows:-

Njenga Kamau 4 acres

Mutahi Kamau 4 acres

Mukundi Kamau 3 acres

Karogi Kamau 3 acres

Jane Wangari Kamau 3 acres

Wanjiru Kamau 3 acres

Mariam Kamau 3 acres

Mary Kamau 1 acre

David Chege Kamau 1 acre

Rhoda Nyambura Kamau 1 acre

Muthoni Kamau 1 acre

Joseph Gakuru Kamau 1 acre

A grandson called Kamau Njenga is given 4 acres out of the same property, while George Ruthi Kamau has been disinherited for reasons given in the will. Njenga Kamau is further given a mobile phone, Lister engine, posho mill, timber bench, plough and a ledger, while Mariam and Wanjiru Kamau are given a house and store to share jointly. The seven donkeys are shared between Njenga Kamau, Mukundi Kamau and Ngari Kamau in the ratio of 2:2:1 respectively. The four cows are taken by Kamau Njoroge, Karogi Kamau, Wanjiru Kamau and Mariam Kamau in the ratios of 1:1:1:1.

The personal representative filed another affidavit on 27th June 2008 sworn on 10th June 2008. In it he sought to make three clarifications:-

That one beneficiary called John Karogi Kamau had died on 5th May 2007 without spouse or child. He was entitled to 3:1 acres according to the will. It is proposed that this share be redistributed among four named individuals – Mary, Jane, Nyambura and Muthoni – at the ratios indicated of 1 acre, 1 acre, 0. 1 acre and 1 acre respectively.

That Mutahi Kamau had predeceased the deceased. He died on 26th October 2001. It is proposed that his share of 4 acres, do devolve upon his wife Gladys Nyatoro Mutahi in trust for his children.

That David Mwaura Kamau is erroneously referred to in the will as David Chege Kamau. The deceased did not infact have a son by the name, David Chege Kamau and reference to the said David Chege Kamau should be read to mean David Mwaura Kamau.

There is a further affidavit sworn by the personal representative on 16th February 2008 on clarify on the marital status of John Karogi Kamau and Boniface Mutahi Kamau. The said affidavit confirms the contents of the previous affidavit of 10th June 2008.

There is a further affidavit sworn on 13th February 2010 by the personal representative to announce the death of two other beneficiaries – Mariam Wanini Kamau and Joseph Gakuru Kamau and to propose the re-distribution of the shares due to them.

I have perused the inventory filed on 24th July 2012 signed by all the beneficiaries. As the parties are in full agreement and as the inventory fully conforms with the will of the deceased dated 13th February 2002, I will allow the application dated 7th September 2007. The estate shall devolve as per the undated distribution schedule filed in Court on 24th January 2012.

DATED, SIGNED and DELIVERED at NAIROBI this 25TH DAY OF April, 2014.

W. MUSYOKA

JUDGE

No appearance for the applicants.