[2012] KEHC 2429 (KLR)
The court found that the protestor had already been adequately provided for by the deceased prior to death, as the main assets had been transferred to him and his mother. Applying Section 40 of the Law of Succession Act, the court held that the remaining property should be distributed among the children of the first...
Source-derived case information.
- Citation
- [2012] KEHC 2429 (KLR)
- Parties
- Applicant: Kathoni M'Marete; Respondent: John Mutugi M'Marete
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 122 of 2009
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
- Outcome
- Application for confirmation of grant allowed in part; estate distributed as per court's orders.
- Judges
- AM Cockar
- Legal Topics
- Intestate Succession, Distribution of Estate, Multiple Spouses, Trusts for Children
- 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
Kathoni M'Marete
Applicant
John Mutugi M'Marete
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Distribution of Estate
Legal Issues
- 1 Whether the protestor is entitled to further share of the estate given prior allocation of assets.
- 2 How the remaining estate should be distributed among the beneficiaries, including purchasers and children from the first house.
- 3 Whether the Law of Succession Act section 40 applies to the distribution in this case.
Ratio Decidendi
The court found that the protestor had already been adequately provided for by the deceased prior to death, as the main assets had been transferred to him and his mother. Applying Section 40 of the Law of Succession Act, the court held that the remaining property should be distributed among the children of the first house, with the purchaser's portion recognized. The protestor was not entitled to further share from the remaining estate, and the balance was to be shared equally among the specified beneficiaries. The court emphasized fairness and the statutory scheme for intestate succession in polygamous families.
Court Disposition
Application for confirmation of grant allowed in part; estate distributed as per court's orders.
Orders
- Land parcel No. KIAMURI 'A'/265 to be shared as follows: Mugambi Ruguaru Borono (purchaser) - 3 acres; the balance to be shared equally among Kathoni M'Marete, Rose Mary Gakeni, Ann Lucy Kaimenyi, Anjerica Gaceri, and Evaline Gakii.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
Succession Cause 122 of 2009
KATHONI M’MARETE............................................................................................PETITIONER
VERSUS
JOHN MUTUGI M’MARETE................................................................................PROTESTOR
RULING
The petitioner brought an application for confirmation of the grant issued by this court on 19th June 2009. The application is a Summons dated 8th August 2011.
The son of the deceased JOHN MUTUGI M’MARETE protested to the confirmation by refusing to sign the consent on the confirmation and mode of distribution of the estate. The court declined to confirm the grant. Eventually the parties came before court and were advised each to file an affidavit giving the mode of distribution they suggest.
Both the petitioner and the protestor have filed their affidavits. The affidavit by the protestor has not given any suggestions on the mode of distribution instead the protestor states he has taken over his mother’s share of the devolved estate of the deceased being the only son of his father. He complains of one Mugambi, a purchaser of being allowed to buy as portion of the deceased land which falls within the first house and the basis of the complaint is that his late father never mentioned to him that he was selling land to third parties.
The affidavit by the petitioner has listed all the properties the deceased ever owned. These are LR. NO.KIAMURI ‘A’/1433 AND ‘A’/263 both which were registered in the name of the protestor. The green cards are annexed showing the titles are in protestor’s names.
This was done before the deceased died. Both parcels total 3. 6 Ha. The third and remaining property is LR NO. ‘A’/265. It measures 10 acres according to the petitioner and 14 acres according to the protestor. The petitioner proposes to have it shared as follows:-
Mugambi Ruguaru Barono- purchaser - 3 acres
Kathoni M’Marete (petitioner) to hold in trust for Rose Mary Gakeri, Ann Lucy Kaimenyi, Anjerica Gaceri and Evaline Gakii the balance.
Section 40 of Law of Succession Act provides that where an intestate had married more than once, his estate should be divided among the houses according to the number of children in each house. In the instant case, the deceased had already given a very large portion of his assets to the protestor and his mother before he died. The remaining asset was left and it was understood that it would be shared between the widow and children of deceased by the first wife. I do find that the protestor has been overly provided for. Even the 1 acre the petitioner was proposing to give him in the initial application for confirmation of grant clearly is undeserved.
I find that the first house should share the balance of the estate of the deceased subject to acreage bought by Mr. Mugambi Borono.
I will therefore order that:-
1. The land parcel No.KIAMURI ‘A’/265 be shared as follows:
a.Mugambi Ruguaru Borono - 3 acres
b.The balance to be shared equally between
i.Kathoni M’Marete
ii.Rose Mary Gakeni
iii.Ann Lucy Kaimenyi
iv.Anjerica Gaceri
v.Evaline Gakii
2. Each party will bear their own costs.
Dated, signed and delivered this 31st day of July, 2012.
LESIIT, J
JUDGE