[2011] KEHC 429 (KLR)
The court found that neither party's proposed schedule of distribution fully complied with Section 35 of the Law of Succession Act, which governs the distribution of an estate where the deceased is survived by a spouse and children. The law entitles the surviving spouse to all personal and household effects and a...
Source-derived case information.
- Citation
- [2011] KEHC 429 (KLR)
- Parties
- Applicant: Johnson Kamau Gachoka; Respondent: Peter Kamau Gituro
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 599 of 2009
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
- Outcome
- Grant confirmed and estate distributed in accordance with statutory requirements; each party to bear own costs.
- Legal Topics
- Succession, Life Interest, Distribution of Estate, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Kamau Gachoka
Applicant
Peter Kamau Gituro
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the proposed schedules of distribution by the parties conform with Section 35 of the Law of Succession Act.
- 2 How the estate of the deceased should be distributed among the surviving spouse and children in accordance with the law.
Ratio Decidendi
The court found that neither party's proposed schedule of distribution fully complied with Section 35 of the Law of Succession Act, which governs the distribution of an estate where the deceased is survived by a spouse and children. The law entitles the surviving spouse to all personal and household effects and a life interest in the residue of the estate, with the power to appoint capital among the children. Upon the spouse's death, the residue devolves equally to the children. The court exercised its inherent powers to confirm the grant and set out a distribution that aligns with these statutory requirements: all personal and household effects to the widower; half of the cash in the KCB...
Court Disposition
Grant confirmed and estate distributed in accordance with statutory requirements; each party to bear own costs.
Orders
- All personal and household effects of the deceased to be given to the widower (Petitioner).
- Cash held in A/C No. 114173977, K.C.B, Mukurweini Branch: half to the widower (Petitioner), remainder to be shared equally among the deceased's children.
Full Case Text
Judgment text and source record
61 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 599 OF 2009
IN THE MATTER OF THE ESTATE OFSUSAN NYAMBURA KAMAU – DECEASED
JOHNSON KAMAU GACHOKA............................................................................PETITIONER
VERSUS
PETER KAMAU GITURO.........................................................................................OBJECTOR
RULING
On 25th November 2010, this Court declined to confirm the grant issued jointly to John Kamau Gachoka (Applicant) and Peter Gituro Kamau alias Kamau Peter Gituro (Protestor) until the duo filed further affidavits with a schedule of distribution that conforms with the provision ofSection 35 of the Law of Succession Act. I have read the further affidavits filed by each of them. On his part, John Kamau Gachoka, the Petitioner herein, has proposed for the Estate to be shared as follows:
(a)All the personal and household effects be given to the Petitioner.
(b)The Petitioner also have Life interest of the residue of the net intestate of the Estate.
(c)The 7 undivided share in L.R. NO. GITHI/KIREREMA/142 to be equally shared between the beneficiaries.
(d)All the cash and stocks be given to the Petitioner.
Peter Gituro Kamau alias Kamau Peter Gituro, on his part filed a further affidavit in which he proposed the Estate to be shared as follows:
(1)All monies held in A/C 114173977, K.C.B. Mukurweini, branch to be shared equally by the following:
(a)David Mwangi Kamau.
(b)Rose Wambere Kamau.
(c)Stephen Njeru Kamau.
(d)Eddah Nyaguthi Kamau.
(e)Peter Gituro Kamau
(2)C.D.S.C. A/c No. 0000001541994/11-10 be shared equally between:
(a)David Mwangi Kamau.
(b)Rose Wambere Kamau.
(c)Stephen Njeru Kamau.
(d)Eddah Nyaguthi Kamau.
(e)Peter Gituro Kamau.
(f)John Kamau Gachoka (life interest)
(3)GEMA Holdings shares (2 acres) to be shared equally by:
(a)David Mwangi Kamau.
(b)Rose Wambere Kamau.
(c)Stephen Njeru Kamau.
(d)Eddah Nyaguthi Kamau.
(e)Peter Gituro Kamau.
A careful perusal of the above proposals will show that they do not agree in certain aspects. However it is the role of this Court to look at the schedule of distribution which conforms with the provisions of Section 35 of the Law of Succession Act. This cause relates to the Estate of Susan Nyambura Kamau, deceased. The deceased was survived by the following: Johnson Kamau Gachoka (widower).
(a)David M. Kamau - son.
(b)Rose W. Kamau- daughter.
(c)Stephen N. Kamau - son.
(d)Eddah N. Kamau- daughter.
(e)Peter G. Kamau - Kamau.
Under Section 35 of the Law of Succession Act, such an Estate should be distributed as follows:
(a)All personal and household effects of the deceased to go to the surviving spouse.
(b)The surviving spouse too, is entitled to a life interest in the whole residue of the net intestate Estate.
The surviving spouse is entitled during the continuance of the life interest, have the power of appointment of all or any part of the capital of the net intestate Estate by way of gift taking immediate effect among the surviving child or children. The law is very clear under Section 35 (5) that subject to any appointment or award under this Section, the whole residue of the net-intestate Estate shall on the death of the surviving spouse, devolve upon the surviving child and thereafter to be equally divided among the surviving children. Perhaps it is necessary at this juncture to know the meaning of “life interest” so that one can appreciate its application in these proceedings. In Black’s Law Dictionary 8th Edition, ‘Life interest’ is stated to be an interest in real or personal property measured by the duration of the holder’s or another named person’s life. The law is quite explicit that the surviving spouse takes immediate possession of the personal and household effects of the deceased. He or she will have a life interest over the net-intestate Estate. I think the two further affidavits do not meet the threshold set by the law. Having failed to provide that information as directed, this Court now steps in by exercising its inherent power under Section 47 of the Law of Succession Act and makes the following orders:
The grant be confirmed on the basis of the following mode of distribution:
(a)All personal and household effects of the deceased to be given to the widower(Petitioner)
(b)Cash held in A/C No. 114173977, K.C.B, Mukurweini Branch be shared as follows:
(i)Half of it to go to the widower (Petitioner)
(ii)The remainder to be shared equally between the children of the deceased.
(c)C.D.S.C. A/C No. 0000001541994/11-10.
(d)Shares with Gema Holdings (2 acres of land) the widower (Petitioner) to have life interest and thereafter to be shared equally between the deceased’s children namely:
·David Mwangi Kamau
·Rose Wambere Kamau
·Stephen Njeru Kamau
·Eddah Nyaguthi Kamau
·Peter Gituro Kamau
Since the dispute involves members of the same family, I direct that each of them meets his or her own costs.
Dated and delivered at Nyeri this 18th day of November 2011
J. K. SERGON
JUDGE
In open court in the presence of Maatwa holding brief A. Kariuki for Protestor and Kahiga holding brief Muthigani for Petitioner.