[2014] KEHC 6123 (KLR)
The court found that there was no justification for awarding the petitioner a larger portion of the estate than her sister Miriam Wamucii Mwangi. The court emphasized that all children of the deceased are entitled to equal shares in the absence of any advancement or valid reason for deviation. The court rejected the...
Source-derived case information.
- Citation
- [2014] KEHC 6123 (KLR)
- Parties
- Applicant: Mary Nyawira Macharia; Respondent: Mary Thogori Gitonga & Others
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 236 of 2001
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protest allowed; grant confirmed as per equal distribution among beneficiaries.
- Legal Topics
- Succession, Distribution of Estate, Grant Confirmation, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Nyawira Macharia
Applicant
Mary Thogori Gitonga & Others
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the petitioner Mary Nyawira Macharia and her sister Miriam Wamucii are entitled to equal shares in the estate.
- 2 Whether the proposed mode of distribution by the petitioner is justified given the marital status of Miriam Wamucii.
- 3 Whether all children of the deceased are entitled to equal shares in the absence of advancement.
Ratio Decidendi
The court found that there was no justification for awarding the petitioner a larger portion of the estate than her sister Miriam Wamucii Mwangi. The court emphasized that all children of the deceased are entitled to equal shares in the absence of any advancement or valid reason for deviation. The court rejected the petitioner's argument that marital status should affect the distribution and allowed the protest, confirming the grant with an equal distribution among the beneficiaries as proposed by the protestors. The court also noted that there is no bar to the first house agreeing to subdivide the land among themselves, but such arrangements should not affect the equal entitlement...
Court Disposition
Protest allowed; grant confirmed as per equal distribution among beneficiaries.
Orders
- The estate L.R. THIGINGI/KARIA/515 to be distributed as follows: 1st House - Peris Mumbi Guandaru 0.6 acres, Peter Githaiga Gitonga 0.5 acres, Mary Nyawira Macharia 0.4 acres, Miriam Wamucii Mwangi 0.4 acres; 2nd House - Mary Thogori Gitonga 0.35 acres, Zachary Macharia Gitonga 0.35 acres, Martin Wambugu Gitonga...
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
85 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CASE NO. 236 OF 2001
IN THE MATTER OF THE ESTATE OF
ZACHARY KINYUNGU MACHARIA........................................ DECEASED
AND
MARY NYAWIRA MACHARIA .................................................PETITIONER
versus
MARY THOGORI GITONGA & OTHERS...............................PROTESTORS
JUDGMENT
BACKGROUND
CHRISTOPHER MACHARIA and ESTHER NYOKABI MACHARIA applied for grant of letters of administration of the estate of ZACHARIA KINYUNGU GITHII alias KINYUNGU S/O GITHII and named the following survivors.
1. CHRISTOPHER MACHARIA - SON
2. PETER GITHAIGA GITONGA - SON
3. JOSEPH GITONGA MACHARIA - SON
4. MARY NYAWIRA MACHARIA - DAUGHTER
5. ESTHER NYOKABI MACHARIA - WIDOW
The said grant was issued on 5th October 2005 and on 20th September 2010 MARY NYAWIRA MACHARIA made an application for revocation or annulment of the confirmed grant on the ground of the death of the two administrators herein which application was allowed and grant issued on 5th November 2010.
On 13th June 2011 the petitioner MARY NYAWIRA MACHARIA applied for confirmation of the grant and proposed the mode of distribution of L.R. THIGINGI /KARIA/515 as follows:
1. MARY NYAWIRA MACHARIA - 0. 6
2. PERIS MUMBI GITONGA - 0. 6
3. MIRIAM WAMUCII MWANGI - 0. 2
4. MARY THOGORI GITONGA - 1. 4
5. PETER GITHAIGA GITONGA - 0. 5
On 27th February 2012 the protestors herein filed an affidavit of protest sworn by MARY THOGORI GITONGA on the basis that some other beneficiaries were not included and named the beneficiaries and proposed distribution thus:
1. MARY NYAWIRA MACHARIA - 0. 366
2. PERIS MUMBI GITONGA - 0. 623
3. GRACE NYAMBURA WACHIRA - 0. 257
4. MARY THOGORI GITONGA - 0. 311
5. ZAKARY MACHARIA GITONGA - 0. 311
6. JOSEPH GICHUKI GITONGA - 0. 311
7. PETER GITHAIGA GITONGA - 0. 568
Directions were given that the protest be heard by way of affidavit evidence and written submissions.
SUBMISSIONS
PETITIONER
It was submitted that the deceased was survived by the following:
1ST HOUSE
1. MARY NYAWIRA MACHARIA
2. PERIS MUMBI GUANDARU
(wife JOSEPH GITONGA MACHARIA)
3. MIRIAM WAMUCII MWANGI
2ND HOUSE
1. MARY THOGORI GITONGA
3RD HOUSE
PETER GITHAIGA and that as per her proposal mode of distribution each house gets 1. 4 acres and 0. 5 goes to PETER GITHAIGA.
In respect of the 1st house the petitioner further submitted that their 1. 4 be shared as follows:
1. MARY NYAWIRA MACHARIA - 0. 6
2. PERIS MUMBI GUADARU - 0. 6
3. PETER GITHAIGA - 0. 5
4. MIRIAM WAMUCII MWANGI - 0. 25
while the 2nd house gets 1. 4.
On behalf of the protestors further affidavit was filed wherein it was proposed that the 1. 4 acres given to their house be shared as follows:
1. MARY THOGORI GITONGA - 0. 35
2. ZACHARY MACHARIA GITONGA - 0. 36
3. MARTIN WAMBUGU GITONGA - 0. 35
4. JOSEPH GICHUKI GITONGA - 0. 35
and that the 1. 4 given to the house of the protestor be shared as follows:
1. PERIS MUMBI GITONGA - 0. 7
2. MARY NYAWIRA MACHARIA - 0. 35
3. MIRIAM WAMUCII MACHARIA - 0. 35
with PETER GITHAIGA GITONGA - 0. 568
The only issue for determination in this matter as I can identify from the affidavit and written submissions is whether the petitioner MARY NYAWIRA MACHARIA and her sister MIRIAM WAMUCII are entitled to equal shares.
It is the petitioners submissions that since MIRIAM WAMUCII had been married she is only entitled to 0. 2 acres but without offering any reason for the proposed mode of distribution.
It should be noted that all the children of the deceased rank equal in distribution and since the deceased had not made any advancemnt to any of them I therefore find no justification for awarding the petitioner a bigger portion of the land than her sister MIRIAM WAMUCII MWANGI. I further find that there is no bar to this 1st house in agreeing to sub divide the land between MARY GITONGA and her children though this may deny government revenue at this stage.
I would therefore allow the protest herein and confirm the grant herein as follows:
1st HOUSE
1. PERIS MUMBI GUANDARU - 0. 6 acres
2. PETER GITHAIGA GITONGA - 0. 5 acres
3. MARY NYAWIRA MACHARIA - 0. 4 acres
4. MIRIAM WAMUCII MWANGI - 0. 4 acres
2nd HOUSE
1. MARY THOGORI GITONGA - 0. 35 acres
2. ZACHARY MACHARIA GITONGA - 0. 35 acres
3. MARTIN WAMBUGU GITONGA - 0. 35 acres
4. JOSEPH GICHUKI GITONGA - 0. 35 acres
This being a family dispute each party shall bear their own cost.
Dated signed and delivered at Nyeri this 28th March 2014.
J. WAKIAGA
JUDGE
Petitioner in person.
No appearance by Mr. Kimunya
protestor present.
Court: Judgment read in open court in the presence of the petitioner and the protestor but in the absence of Mr. Kimunya advocate.
J. WAKIAGA
JUDGE