[2017] KEHC 5962 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

SUCCESSION CAUSE NO.228 OF 2015

(Arising from P&A No.2 of 2014)

JOHN MUKUNJI MUCHAMI ALIAS MUKUNJI MUCHAMI………….….DECEASED

AND

FRIDAH NANJALA MUKUNJI……………..…….……………………..PETITIONER

JUDGEMENT

1. This matter was initiated in the Principal Magistrates’ Court and transferred to the High Court pursuant to an order made by Hon. S.N. Abuya on 31st July, 2015 for lack of jurisdiction.

2. Pending before Court is distribution of the estate of the deceased one John Mukunji Muchami. Although the lower Court now has jurisdiction this Court is of the view that returning the file back after about 2 years will not be in the interest of justice and called for the beneficiaries since no consent had been obtained on mode of distribution.

3. The deceased left behind property land reference No. Ndivisi/Muchi/887 approximate area 6. 8Ha.

4. Names provided by the administrators of survivors are as follows:

i) Fridah Nanjala Mukunji

ii) Musa Mukweyi Mukunji

iii) Fred Namaswa Wekesa

iv) Joseph Barasa Mukunji

v) Patrick Wafula Mukunji

vi) Benjamin Masinde Mukunji

vii) Makanika Mukunji Simon

viii) Mikisi Mukunji

ix) Gladys Nekhoye Kurem

x) Musa Namaswa Mukunji

5. All except Fridah Nanjala and Glady’s Nekhoye Kurem are sons of the Deceased. The two were wives. Gladys is no longer at the home and of the deceased has relocated and re-married elsewhere.

6. Glady’s Nekhoye is the administrator of the estate and in her proposal suggested distribution as follows:

i) Fridah Nanjala Mukunji - 2. 00Ha

ii) Musa Mukweyi Mukunji – 1. 0Ha

iii) Fred Namaswa – 0. 88Ha

iv) Joseph Barasa Wekesa – 0. 93Ha

v) Patrick Wafula Mukunji – 0. 64Ha

vi) Benjamin Masinde Mukunji – 0. 61Ha

vii) Makanika Mukunji )

viii) Mikisi Mukunji ) 0. 4Ha

ix) Gladys Nakhoye Kurem )

x) Musa Namaswa Mukunji )

7. Makanika, Mikisi and Musa are sons of Gladys who remarried and has no interest in the Estate. Secondly the administrator did not give reason why the 4 would to get a paltry share of the estate as she kept a huge chunk to herself yet she only has a life interest in the Estate.

8. At the hearing of the application for confirmation Makanika opposed the distribution of the Estate as proposed. I find his objection justifiable as the proposed list is unfair, unreasonable and unjust and indeed his consent and that of his brothers had not been obtained.

9. Makanika as stated earlier one of the beneficiaries found the proposed distribution unfair but failed to make any proposal. Section 27 of the Law of Succession Act donates unfettered discretion to the Court in the sharing of the Estate which discretion must be exercised judicially. See the case of Mary Rono Vs Jane Rono & Another (2005)e KLR

10. The Law applicable in the distribution of intestate Estate of a deceased is provided for under the Law of Succession Cap 160 and one need not look any further, this read together with the Constitution of Kenya 2010 gives a basis upon which the Court can proceed to equitably distribute the Estate.

11. Section 4 of the Law of Succession Act provides as follows;

“40(1) where an intestate has married more than

once under any system of Law permitting polygamy,

his personal and household effects and the residue

of the net intesta Estate shall, in the first instance,

be divided among the houses according to the number

of children in each house, but also adding any wife

surviving him as an additional unit to the number of children”.

12. The deceased herein left surviving him 2 widows, one has since remarried. He also left eight sons, consequently and based on the Law as cited above and guided I will distribute the Estate comprising Ndivisi/Muchi/887 approximate 6. 8Ha (16. 796 acres) as follows;

1st House

i) Fridah Nanjala Mukunji – 1 acre (life interest) thereafter to revert to her sons, Musa, Fred, Joseph and Patrick in equal shares).

ii) Musa Mukweyi Mukunji – 1. 97 acres

iii) Fred Namaswa Wekesa – 1. 97 acres

iv) Joseph Barasa Mukunji – 1. 97 acres

v) Patrick Wafula Mukunji – 1. 97 acres

vi) Benjamin Masinde Mukunji – 1. 97 acres

2nd House

i) Gladys Nekhoye Kurem – Nil

(as she re-married)

iii) Makanika Mukunji – 1. 97 acres

iii) Mikisi Mukunji – 1. 97 acres

iv) Musa Namaswa Mukunji – 1. 97 acres

vi) The Deputy Registrar to effect the transfers within 30 days.

vii) Each party will bear their own costs.

DATED and DELIVERED at BUNGOMA this 27th day of April 2017

ALI-ARONI

JUDGE