[2010] KEHC 2026 (KLR)
The court found that no valid will, oral or written, was produced or filed as required by law. Therefore, the deceased was deemed to have died intestate. Under Section 35(1) of the Law of Succession Act, the surviving spouse (petitioner) is entitled to a life interest in the estate and may exercise her power of...
Source-derived case information.
- Citation
- [2010] KEHC 2026 (KLR)
- Parties
- Petitioner: Mbaka Namu; Respondent: Perminus Njiru Namu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 117 of 2008
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Protest
- Outcome
- Application for confirmation of grant allowed with minor amendment; protest dismissed.
- Judges
- J Karanja
- Legal Topics
- Intestate Succession, Distribution of Estate, Life Interest, Rights of Daughters, Oral Will Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbaka Namu
Petitioner
Perminus Njiru Namu
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Protest
Legal Issues
- 1 Whether the deceased died intestate or left a valid oral will.
- 2 How the estate should be distributed among the surviving spouse and children under the Law of Succession Act.
- 3 Whether married daughters are entitled to inherit from their father's estate.
Ratio Decidendi
The court found that no valid will, oral or written, was produced or filed as required by law. Therefore, the deceased was deemed to have died intestate. Under Section 35(1) of the Law of Succession Act, the surviving spouse (petitioner) is entitled to a life interest in the estate and may exercise her power of appointment in favor of any beneficiary. The law does not exclude daughters, whether married or not, from inheritance. The court held that the proposed distribution by the petitioner was fair and just, with a minor adjustment to grant the petitioner a life interest in a portion of land, with the remainder to revert to the protesting son. The protestor's claim based on an alleged...
Court Disposition
Application for confirmation of grant allowed with minor amendment; protest dismissed.
Orders
- Grant confirmed as per amended schedule of distribution.
- KAGAARI/KIGAA/693: 1.89 acres to Peris Mbiro Namu; 1 acre to Mbaka Namu for life interest, remainder to Perminus Njiru Namu.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Cause 117 of 2008
NAMU MUNANO………………………………………DECEASED
VERSUS
MBAKA NAMU……………..……………………..…PETITIONER
R U L I N G
The petitioner herein is approximately 90 years old as per the chief’s letter dated23/1/08. She was granted the letters of administration to the estate of her late husband by this court on13/5/08amidst protest by her son one Perminus Njiru Namu.
She filed her application for confirmation of the said Grant on31/3/09and indicated her intended mode of distribution of the 2 parcels of land left by her husband as follows:
(a)KAGAARI/KIGAA/693measuring 2. 89 Acres to be distributed as follows:
(i)PERIS MBIRO NAMU 1. 89 Acres
(ii)MBAKA NAMU (Petitioner) 1 Acre
(b)KAGAARI/KIGAA/359measuring 4. 70 Acres to be distributed as follows:
(i)PERMINUS NJIRU NAMU – 2 Acres
(ii)JANE IGANDU NYAGA – 1. 35 Acres
(iii)EDITH THAARA MURANO – 1. 35 Acres
Perminus Njiru Namu the only son in the family objected to the mode of distribution.This court asked him to file his affidavit of protest within 14 days giving his own schedule of his preferred mode of distribution.He filed the affidavit dated5/3/2010but he did not make any proposals on the mode of distribution. His contention is that his late father left an oral will in which he gave the parcels of land to him with directions that he gives his sister a portion of the land the size of which he did not state. He claims that his elderly mother is being misled by his sisters.
When the application came up for hearing on29/4/2010, Perminus did not appear.Counsel for the petitioner asked the court to decide the matter on the strength of the affidavits filed.
I have considered these affidavits.The protestor (if I may call him so) wants to be given the parcels of land and then he can give whatever he wants to one sister who he did not name.He appears to be irked or upset by the fact that some of his sisters are married yet their mother wants to give them land.
The court was not shown any will made by the deceased.None was filed at the registry with the petition herein as required by law.For all intents and purposes therefore, the deceased herein died intestate and his estate must be distributed in accordance with Part V of the laws of Succession Act (cap 160 Laws of Kenya) and more particularly Section 35(1) of the said Act.
Under that section, the net intestate estate vests in the surviving spouse - in this case the petitioner – who has a life interest in the same.During her life time, she can exercise her power of appointment in favour of any of the beneficiaries.This appears to be what she has opted to do.The same law provides that in the event the surviving spouse dies, then the entire estate will be divided equally among all the surviving children.
This section does not therefore discriminate against the daughters in favour of the son.Nor does it disqualify the married daughters from inheriting the property.If the protestor wants to go by this option, then the estate will revert to the petitioner who will have a life interest in the estate and once she is gone, he and all the sisters will share the land equally.He will end up getting an even smaller share from what the petitioner wants to give him now.
The mode of distribution proposed by the petitioner is in my view fair and just.I would nonetheless make a slight adjustment if only to appease the protestor in the interest of his mothers’ peace of mind and order that the petitioner i.e. Mbaka Namu gets a life interest in the 1 acre she has left for herself and the remainder thereof reverts to the protester Perminus Njiru Namu.
I therefore allow the application dated31/3/09with a slight amendment to the schedule and confirm the grant on the following terms:
(a) KAGAARI/KIGAA/693 measuring 2. 89 Acres to be distributed as follows:
(i)PERIS MBIRO NAMU 1D.1305195 to get 1. 89 acres.
(ii)MBAKA NAMU have a life interest over 1 acre, remainder to PERMINUS NJIRU NAMU.
(b)KAGAARI/KIGAA/359 measuring 4. 70 Acres to be distributed as follows:
(iii)PERMINUS NJIRU NAMU – 2 Acres.
(iv)JANE IGANDU NYAGA – 1. 35 Acres.
(v)EDITH THAARA MURANO – 1. 35 Acres.
A certificate of confirmation to issue to that effect.
Delivered, signed and dated at Embu this 7th day of June 2010.
W. KARANJA
JUDGE