[2017] KEHC 4603 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

MISCELLANEOUS SUCCESSION CASE NO. 34 OF 2016

[FORMERLY CHUKA SPM SUCCESSION CAUSE NO. 346 OF 2011]

IN THE MATTER OF THE ESTATE OF MAGIRI MURAGA (DECEASED)

AND

MUGAMBI MAGIRI………………….….PETITIONER/APPLICANT

VERSUS

MBAE MAGIRI………………….......PROTESTOR/RESPONDENT

JUDGMENT

1. The cause herein involves the estate of the LATE MAGIRI MURAGA who died in 1960 on an unspecified date as he passed on when registration process of deaths had not been developed. The petition filed herein shows that he was survived by sons namely:

(i) Mugambi Magiri (the Petitioner and the Administrator)

(ii) Mbae Magiri (the Protestor)

2. The only asset listed comprising the estate herein is that property known as LR. NO.MWIMBI/MURUGI/335 measuring approximately 5. 372 ha. Mugambi Magiri the petitioner herein was appointed the administrator herein vide a grant of letters of administration issued on 11th January, 2012 and later a fresh grant was issued on 5th October, 2016. Through summons dated 6th October, 2016, the petitioner applied for confirmation of the said grant proposing to have the estate distributed equally between him and his younger brother him and MBAE MAGIRI, the protestor herein.

3. The protestor however was opposed to the proposed mode and proposed that the entire estate should devolve to him solely. The reasons advanced by protestor in his affidavit of protest sworn on 10th January, 2017 are that the elder brother was allegedly born out of wedlock and that he is the only child sired by the deceased herein who had not benefited from any share of the estate.

4. At the hearing of the protest viva voce, it transpired that the deceased also had a married daughter named Mukwanjiru Magiri who was not interested in a share of the estate herein. The protestor also testified that his step brothers benefited from gifts intervivos from their late father the deceased herein and therefore he was the only one entitled to the estate herein.

5. The petitioner on his part was clear in his mind that he was a son to the deceased herein and that his proposal to have the estate distributed equally was fair as both of them are the only dependants to the estate herein. He pointed out that the protestor in his earlier affidavit sworn on 30th March, 2015, did recognize him as a son to the deceased and only claimed that he had benefitted from another share, gifted to him by the deceased herein, a claim he denied.

6. This court has considered the affidavit of protest herein and the evidence tendered by both parties. The protestor’s main basis of protest is that the administrator was not a biological son to the deceased a claim which this court finds rather absurd and ridiculous. The protestor testified and acknowledges that he is a young brother to the petitioner born of the same mother. He further testified that their late mother was never married to the deceased but that she only had an affair with the deceased. The question posed is how was he able to know about her mother’s past relationship with the deceased and whether that relationship only resulted to his conception and not that of his elder brother? He certainly has no capacity to question his elder brother’s paternity because he simply was absent when his brother was born. He also did not tender any evidence to back up his ridiculous claims and this court found none. This finds no basis for the protest as the two are the children of the deceased and are entitled to a share of the estate.

7. The provisions of Section 38 of the Law of Succession Act provides that when an intestate has left surviving children and no spouse the net estate shall be divided equally among the surviving children. That being the position in the law, this court is persuaded that the other surviving daughter Mukwanjeru Magiri is not interested in a share of the estate herein otherwise she could have laid a claim on it as well considering the age of this cause and the parties herein. In the premises the grant issued to the petitioner herein on 5th October, 2016 is hereby confirmed as per the proposed mode suggested under paragraph 6 of the affidavit of the petitioner sworn on 6th October, 2016. I make no order as to costs so each party shall bear own costs.

Dated and delivered at Chuka this 13th day of July, 2017

R. K. LIMO

JUDGE.

13/7/2017

Judgment signed, dated and delivered in the open court in the presence of Mugo for Petitioner and Murithi for Protestor and both parties.

R. K. LIMO

JUDGE

13/7/2017