[2017] KEHC 1903 (KLR)
The court held that the law of succession and the Constitution of Kenya require equal treatment of all children in the distribution of an intestate estate, regardless of gender. The applicant's proposal to receive a larger share solely because he is the only son was rejected as discriminatory and contrary to both...
Source-derived case information.
- Citation
- [2017] KEHC 1903 (KLR)
- Parties
- Applicant: John Mwirigi M’Marete; Respondent: Esther Tirindi Kubai; Respondent: Grace Mataria M’Ithili
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 231 of 2009
- Procedural Posture
- Succession Cause / Ruling on Distribution of Estate After Revocation and Fresh Grant
- Outcome
- Estate to be distributed equally among all children of the deceased or their survivors.
- Legal Topics
- Intestate Succession, Distribution of Estate, Gender Equality in Inheritance
- 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
John Mwirigi M’Marete
Applicant
Esther Tirindi Kubai
Respondent
Grace Mataria M’Ithili
Respondent
Procedural Posture
Succession Cause / Ruling on Distribution of Estate After Revocation and Fresh Grant
Legal Issues
- 1 Whether the estate of the deceased should be distributed equally among all children regardless of gender.
- 2 Whether the applicant is entitled to a larger share of the estate by virtue of being the only son.
- 3 How to account for deceased beneficiaries and their survivors in the distribution.
Ratio Decidendi
The court held that the law of succession and the Constitution of Kenya require equal treatment of all children in the distribution of an intestate estate, regardless of gender. The applicant's proposal to receive a larger share solely because he is the only son was rejected as discriminatory and contrary to both statutory and constitutional provisions. The estate must be distributed equally among all children of the deceased, or, where a child is deceased, to their survivors. The court further directed that the applicant's share should take into account the portion of land where his family is currently settled, but this does not entitle him to a greater share overall.
Court Disposition
Estate to be distributed equally among all children of the deceased or their survivors.
Orders
- The intestate estate of the deceased shall be shared equally amongst the children of the deceased or, where deceased, their survivors to get their due portions.
- John Mwirigi Marete’s share should take into consideration where his family is currently settled on either of the two parcels of land making up the estate.
Full Case Text
Judgment text and source record
55 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 231 OF 2009
IN THE MATTER OF THE ESTATE OF JACOB MARETE KAIBUI - DECEASED
JOHN MWIRIGI M’MARETE .........................................APPLICANT
VS
ESTHER TIRINDI KUBAI..............1ST PETITIONER/RESPONDENT
GRACE MATARIA M’ITHILI..........2ND PETITIONER/RESPONDENT
RULING
Grant of Letters of Administration made on 28th September 2010 and confirmed on 29th February 2012 was revoked by consent of applicant in application dated 12th January 2015 together with the Petitioner and their advocates and fresh grant made Jacob Marete Kaibui and Grace Mataria M’Ithili.
The 2 administrators were directed to file joint application for confirmation and distribution of the estate. Where agreeable and in default each to file separate modes of distribution on 20th September 2017. Mr Mokua Advocate for the Petitioner proposed that determination be made based on affidavits filed in support or opposition of modes of distribution.
Mr Bwonwonga Advocate for Objector/Protestor had no objection. The Protesters mode of Distribution was filed on 20th September 2017, and it provides how parcels No. L.R. Kiira/Naari/311 and Ntima/Ntakira/3821 should be distributed i.e L.R. Kiirua/Naari/311
1. Esther Tirindi Kubai – 0. 5 acre
2. Grace Mataria 1. 50 acres
3. Rachel Kajuju – 0. 5 acres
4. Naomi Mwenda – 0. 5 acre
5. Evangeline Nkatha – 0. 5 acre
6. John Mwirigi – 6. 89 acres
L.R. Ntima/Ntakira/3521
1. Esther Tirindi Kubai – 0. 2 acre
2. Grace Mataria 0. 16 acres
3. Rachel Kajuju – 0. 16 acres
4. Naomi Mwenda – 0. 16 acres
5. Evangeline Nkatha – 0. 16 acres
6. John Mwirigi – 0. 16 acres
On the other hand Grace Mataria M’Ithili made her proposal on affidavit sworn on 6th June 2017 as follows:-
L.R Kiirua/Naari/311-9. 45 acres
1. Esther Tirindi Kubai
2. Grace Mataria
3. Rachel Kajuju
4. Naomi Mwenda
5. Evangeline Nkatha
6. John Mwirigi
To share equally.
L.R.Ntima/Ntakira/3821 approximately one acre also to be share equally.
At paragraph 6 of the affidavit of Grace Mataria M’Ithili, it is shown that Harun Kimathi who was son to the deceased also died. It is not indicated whether he died before or after the deceased death.
It is not indicated if he had any surviving beneficiaries and/or dependants. On the other hand on 20. 9.2017, the court was informed that Esther Tirindi the daughter of the deceased had also died pending the succession cause and her son Solomon Kimaita was in court on her account.
John Mwirigi M’Marete does not explain criteria for his mode of distribution and the only obvious reason would be that he is the only son and therefore being a man is entitled to benefit more from the estate.
The law of succession and the constitution however treats everyone equally before the law and it would be infringement of fundamental rights and freedoms to make distribution based on the gender of the children of the deceased.
An order will therefore issue that the intestate Estate of the deceased be shared equally amongst the children of the deceased or where dead their survivors to get their due portions.
John Mwirigi Marete’s share should put in consideration where his family is currently settled on either of the 2 parcels of land making up the estate.
Orders Accordingly.
HON. A.ONG’INJO
JUDGE
9. 11. 2017
Before Adwera – J
Penina – C/A
1st & 2nd Petitioners – P/P
Applicant
Mr Gitonga Advocate holding brief for Mr Bwonwonga for Protester
Mr Mokua Advocate for Petitioners.
Order
Ruling delivered, dated and signed in court on 9th November 2017.
HON. A.ONG’INJO
JUDGE