[2005] KEHC 2650 (KLR)
The court held that, in accordance with Section 40(1) of the Law of Succession Act, the estate of a polygamous intestate should be distributed among the houses based on the number of children in each house. The judge found that Elodian Wanjuki Mumbura's proposed distribution followed the deceased's wishes and...
Source-derived case information.
- Citation
- [2005] KEHC 2650 (KLR)
- Parties
- Applicant: Elodian Wanjuki Mumbura; Respondent: Anna Wanjira Nyambura
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 544 of 2002
- Procedural Posture
- Succession Cause / Ruling on Protest to Mode of Distribution
- Outcome
- Protest overruled; estate to be distributed as per applicant's proposal with additions.
- Judges
- I Lenaola
- Legal Topics
- Succession, Intestate Estate Distribution, Polygamous Marriages, Customary Law Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elodian Wanjuki Mumbura
Applicant
Anna Wanjira Nyambura
Respondent
Procedural Posture
Succession Cause / Ruling on Protest to Mode of Distribution
Legal Issues
- 1 Whether the estate of a polygamous intestate should be distributed equally between the wives or among all children.
- 2 Whether the deceased's wishes and prior family arrangements should be upheld in the distribution of the estate.
- 3 Whether the protest by Anna Wanjira Mumbura provides sufficient grounds to disturb the proposed distribution.
Ratio Decidendi
The court held that, in accordance with Section 40(1) of the Law of Succession Act, the estate of a polygamous intestate should be distributed among the houses based on the number of children in each house. The judge found that Elodian Wanjuki Mumbura's proposed distribution followed the deceased's wishes and treated all children equally, including those of Anna Wanjira Mumbura, who had not been disinherited despite her separation from the deceased. The court noted that there was no protest from any other family member and that Anna Wanjira Mumbura had not provided sufficient grounds to disturb the proposed arrangement. The protest was therefore overruled, and the estate was to be...
Court Disposition
Protest overruled; estate to be distributed as per applicant's proposal with additions.
Orders
- The protest by Anna Wanjira Mumbura is overruled.
- The grant to be listed for confirmation in terms of Elodian Wanjuki Mumbura's proposal, with the deceased's motor vehicles and bank accounts added to the schedule of assets.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CASE NO. 544 OF 2002
MUMBURA MACHARIA ………………………DECEASED
AND
ELODIAN WANJUKI MUMBURA ………… PETITIONER
ANNA WANJIRA NYAMBURA ……………….PROTESTER
RULING
1. The matter herein is to my mind quite simple; the two wives of the late Mumbura Macharia cannot agree on how his estate should be distributed. The lower court had on 18/11/1994 ordered that the two be appointed as joint administrators of the estate. Elodian Wanjuki Mumbura proposes that the properties should be divided equally amongst the nine sons of the deceased and the remainder to be given to the wives and daughters in equal shares to be held by the wives. Anna Wanjira Mumbura wishes that the property be shared out equally between herself and her co-wife.
2. What does the law say? Where the deceased has two wives (and it is agreed that despite her separation with the deceased, Anna Wanjira Mumbura is still a wife), then the property should be shared out equally between the wives. Section 40(1) of Cap. 160 provides that where an intestate was polygamous, then his personal and household effects and the residue of his estate shall be shared out equally amongst the houses according to the number of children in the houses. If the property is agricultural land, then under section 32 and 33 of Cap. 160, customary law shall be invoked in the distribution thereof.
3. I have seen the list of assets contained in the deceased’s estate and they include three parcels of land and some motor-vehicles. I have also heard the parties and noted that Anna Wanjira Mumbura left her children to be tended to by Elodian Mumbura since 1996. I have also noted that in her proposed distribution of the estate, Elodian followed the wishes of the deceased. Anna Wanjira and all her children have been treated equally to the children of Elodian Mumbura. They were not disinherited inspite of the lengthy separation with the deceased. I have heard no protest from the rest of the family save Anna Wanjira Mumbura. Each case should be treated on its own merits inspite of SS. 32 and 33 of the Act.
4. I do not see any reason to disturb the orderly arrangement reached by the deceased and his family save for the estranged protester, Anna Wanjira Mumbura. The Protester has given no urgent reason why I should do so.
5. I shall overrule the protest and order that the grant herein be listed for confirmation in terms of the proposal by Elodian Mumbura save that the motor vehicles belonging to the deceased and his bank accounts be added to the schedule of assets.
6. Mention on a date to be agreed to confirm compliance with the latter orders above.
No order is made as to the costs.
Orders accordingly.
Read in Open Court this 3rd day of February 2005
I. LENAOLA
JUDGE
In the Presence of;
Mr. Kathungu for Petitioner
Protester in person
I. LENAOLA
JUDGE