[2011] KEHC 2047 (KLR)
The court found that the dispute centered on the method of distributing the proceeds from the sale of two estate properties. The deceased was polygamous, survived by three wives (one still alive) and 19 children. The applicants sought to share the proceeds equally among the three administrators, but the respondent...
Source-derived case information.
- Citation
- [2011] KEHC 2047 (KLR)
- Parties
- Applicant: Jackson Ngatia Kimunya; Applicant: Humprey Gakuru Kimunya; Respondent: Joseph Kimaru Kimunya
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 747 of 2009
- Procedural Posture
- Succession Cause / Ruling on Summons General for Authorization and Distribution of Estate Proceeds
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Succession of Polygamous Estates, Distribution of Estate Proceeds, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jackson Ngatia Kimunya
Applicant
Humprey Gakuru Kimunya
Applicant
Joseph Kimaru Kimunya
Respondent
Procedural Posture
Succession Cause / Ruling on Summons General for Authorization and Distribution of Estate Proceeds
Legal Issues
- 1 Whether the proceeds from the sale of estate property should be shared equally among the administrators or in accordance with section 40 of the Law of Succession Act for polygamous estates.
- 2 Whether the court should authorize the Deputy Registrar or bank manager to sign withdrawal documents on behalf of a non-consenting administrator.
Ratio Decidendi
The court found that the dispute centered on the method of distributing the proceeds from the sale of two estate properties. The deceased was polygamous, survived by three wives (one still alive) and 19 children. The applicants sought to share the proceeds equally among the three administrators, but the respondent insisted on distribution according to section 40 of the Law of Succession Act, which mandates sharing among houses based on the number of children. The court held that the respondent was correct in refusing to sign withdrawal slips for equal distribution among administrators, as this would contravene the statutory scheme for polygamous estates. The court declined to grant the...
Court Disposition
application dismissed
Orders
- Summons General dated 21st May 2010 is dismissed.
- Administrators are directed to share out the proceeds under section 40 of the Law of Succession Act.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 747 OF 2009
IN THE MATTER OF THE ESTATE OFKIMUNYA GITUTO alias KIMUNYA S/O GITUTO..................DECEASED
JACKSON NGATIA KIMUNYA
HUMPREY GAKURU KIMUNYA............................................................................................................PETITIONERS
VERSUS
JOSEPH KIMARU KIMUNYA...............................................................................................................RESPONDENT
RULING
The grant of letters of administration intestate in respect of the estate of Kimunya Gituto alias Kimunya s/o Gituto, deceased was given in the joint names of Jackson Ngatia Kimunya, Humprey Gakuru Kimunya and Joseph Kimaru Kimunya on 10th December 2009. The grant was confirmed on 16th July 2010. The assets of the estate available for distribution were identified as follows:
1. Karatina Town Block 1/99.
2. Magutu/Gathehu/418
3. Narok/Mutara/Block 1/653.
4. Plot no. Giakabei/1
The three administrators were to be jointly registered as proprietors of the aforesaid parcels of land in trust for themselves and the members of the houses they represented.
Jackson Ngatia Kimunya and Humprey Gakuru Kimunya, hereinafter referred to as the Applicants, have taken out the summons General dated 15th February 2011, the subject matter of this ruling, in which they seek for the following orders:
1. That the Honourable court be pleased to authorize its Deputy Registrar to sign all the necessary documents on behalf of JOSEPH KIMARU KIMUNYA to give effect to the confirmation of Grant issued on 16th July 2010.
2. That the honourable court be pleased to issue an order directing the Manager Equity Bank Karatina Branch to sign on behalf of JOSEPH KIMARU KIMUNYA and/or release the money held in the joint account Number 0040294296322 in the names of the three petitioners herein JACKSON NGATIA KIMUNYA, HUMPREY GAKURU KIMUNYA AND JOSEPH KIMARU KIMUNYA to the said three petitioners in equal shares, being the amount paid to them after the sale of KARATINA TOWN BLOCK 1/99 and PLOT NO. GIAKABEI/1, which are items No. 1 & 4 indicated in the certificate of the confirmed grant issued on 16th July 2010 and as per their mutual agreement.
3. Costs of this application be provided for.
The summons is supported by the joint affidavit of the applicants. The applicants have stated that the three administrators mutually agreed to sell: (i) Karatina Town Block 1/99 and (ii) Plot no. Giakabei/1 and share the proceeds equally. The trio are said to have agreed to open an interest earning account in their joint names. As a result of the later agreement account no. 0040294296322, Equity Bank, Karatina Branch was opened. The proceeds of the sale of the aforesaid parcels of land was deposited into that. The applicants are now saying that their brother Joseph Kimaru Kimunya, the Respondent herein has refused to sign the necessary documents at the bank to enable them withdraw the case and share as agreed. The Respondent on his part sworea replying affidavit to oppose the summons. He admitted that he has refused to sign the withdrawal slips because he is of the view that the money should be shared equally between the deceased’s 19 children instead of houses yet the houses are not even.
I have considered the material placed before me and it is clear that the dispute between the parties is that relates to the sharing of the proceeds of the sale of the two parcels of land. There is no dispute that the deceased was married to three wives. From the averments it would there is only one widow which survived the deceased i.e Charity Wakwaya. The law is very clear as how the e state of a polygamous man should be shared. The same should be shared according to the provisions of section 40 of the Law of Succession Act. I am convinced the Respondent was right in declining to sign the withdrawal slips and in declining to share the money in equal measure as proposed by the Applicants. I declined to grant orders sought and direct the administrators to share out the proceeds under section 40 of the Law of Succession Act. Consequently the Summons General dated 21st May 2010 is dismissed. Each party to bear his or her own costs
Dated and delivered this 15th Day of July 2011.
J.K. SERGON
JUDGE
In open court in the presence of the parties.
J.K. SERGON
JUDGE