[2016] KEHC 1966 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 663 OF 2015

(FORMERLY CHUKA SPM, SUCCESSION CAUSE NO. 393 OF 2011)

IN THE MATTER OF THE ESTATE OF THE LATE MUTUARUBIU NJERU alias MUTUARUBIU NTHIERI (DECEASED)

AND

NELSON MBUNGU...................................................APPLICANT/PETITIONER

- VERSUS -

CAROLINE MUTHONI RUBIU......................................................PROTESTER

J U D G M E N T

1. Mutua Rubio Njeru "the deceased" died on 6th July, 1991. He was survived by the following:-

a) Linus Mukuru-Son

b) Nelson Mbungu-Son

c) Benjamin Nguru-Son

d) Lucyline Ciatharaka-Daughter

e) Caroline Muthoni-Daughter

2. In November, 2011 Nelson Mbungu ("the Petitioner") petitioned for Letters of Administration Intestate which were issued to him on 13th August, 2012. The Petitioner did not apply for the confirmation thereof until Caroline Muthoni Rubio (hereinafter "the Protestor") applied on 20th June, 2016 for the court to direct him to do so. On 25th August, 2016, the Petitioner applied for the confirmation of grant whereby he proposed that the estate be distributed as follows:-

LR Magumoni/Mukuuni/309

a) Nelson Mbungu- Son-0. 70 acres

b) Erick Mwiti - Grandson-0. 50 acres

c) Lenick Mugambi- Grandson-0. 50 acres

d) Kelvin Mwiathi- Grandson-0. 50 acres

e) Dennis Kariuki- Grandson-0. 50 acres

f) Caroline Muthoni- (Daughter- Married) 0. 25 acres

3. This was met by a Protest from Caroline Muthoni on 29th August, 2016 in which she claimed that she and her sister Lucyline Ciatharaka were entitled to 1 acre in the estate whilst the Petitioner was only entitled to 1. 90 acres. The court directed that the parties do file Affidavit evidence and the matter be determined through viva voce evidence.

4. At the trial, the Protestor (PW1) told the court that she was a daughter of the deceased; that before his demise the deceased had directed that LR Magumoni/Mukuuni/309 ("the Estate Land") be inherited by her and her sister Lucy Ciatharaka (1 acre) and the Petitioner do get 1. 90 acres, that the mode of distribution proposed by the Petitioner was unjust as it included the Petitioner's sons who were not beneficiaries. Lucy Ciatharaka Mutegi (PW3) a daughter of the deceased supported the evidence of the Protestor as did Ngurwe Mutuarubiu (PW2), the younger brother of the Protestor. In cross-examination, PW3 told the court that the deceased had said that his daughters be given the one (1) acre where he, the deceased was living in whilst the Petitioner got the rest of the land. That he, PW2 has his own land and was not interested in the estate land.

5. On his part the Petitioner (RW1) told the court that during his lifetime, the deceased had given his other brothers land and that they were therefore not entitled to share in the estate land; that he had distributed to the Protestor 0. 25 acres as she was alone and he had seven children to take care of. That since each son had been given his own land, the Protestor should go to any of her brothers for more land if she so wished.

6. Having listened to the witnesses and considered the evidence tendered, the issues for determination are; whether the deceased had settled his children and if not so, how the estate should be distributed. RW1 told the court that during his lifetime the deceased gave his brothers Morris Kamau 4 acres, Linus Mukuru 9. 95 acres and Benjamin Ngurue 4 acres. That the estate land was left for him and his sisters. The other witnesses who testified never challenged that evidence. PW1, PW2 and PW3 told the court that the deceased was living with the Petitioner and Protestor on the estate land. That the deceased had shown the Petitioner where to cultivate; that he had indicated that the area of one (1) acre that he occupied belonged to his daughters, the Protestor and Lucy Ciatharaka. The Petitioner did not deny or challenge that evidence. Indeed PW3, Ngurue Mutuarubiu was firm that the deceased had shown the Petitioner an area which he was to utilize for the benefit of the Protestor who was then in school.

7. Section 38 of the Law of Succession Act provides:-

"38. Where an intestate has left a surviving child or children but no spouses, the net intestate estate shall, subject to the provisions of section 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children."

Since the other children of the deceased had been provided for by the deceased during his lifetime, they are not entitled to participate in the estate land as what they received exceeds the estate land. This is so by dint of section 42 of the Act which provides that whatever a beneficiary has received during the lifetime of the deceased, be taken into account on distribution. Under Section 38 of the Act aforesaid, the estate land is supposed to be divided equally between the three beneficiaries that is the Petitioner, the Protestor and Lucy Ciatharaka.

8. From the testimonies on record, I make a finding that the deceased had settled his children as follows:-

a) Morris Kamau

Limus Mukuru and

Benjamin Ngurue on land which do not form part of the estate.

b) Nelson Mbungu - 1. 90 acres in plot 309

c) Daughters of the deceased - one (1) acre on plot 309.

9. As regards the children of the Petitioner, Erick Mwiti, Lenick Mugambi, Kelvin Mwiathi and Dennis Kariuki, these are grandsons of the deceased. They are neither beneficiaries nor dependants of the deceased. There was no evidence to show that they were directly dependent on the deceased immediately before his demise to qualify as dependants under section 29 (b) of the Act. They are therefore not entitled to inherit from their grandfather. It cannot be that the Protestor is being given 0. 25 acre just because she is only a daughter. She is entitled equally what the Petitioner is entitled to under the law. A child is a child. there is no daughter or son, married or unmarried. Daughters are also all children of a deceased. Under Article 27 of the Constitution, Section 38 of the Act and the cases of Rono .v. Rono & Another [2008] 1 KLR (G&F) 803 and Nyeri CA No. 3 of 2015 Stephen Gitonga M'Murithi .v. Faith Ngira Murithi (UR) they are entitled to equal shares in the estates of their deceased parents.

10. Accordingly, the estate of the deceased is to be distributed as follows:-

(A) LR NO. MAGUMONI/MUKUUNI/309

1. Nelson Mbungu-1. 90 Acres

2. Caroline Muthoni Rubio

Lucyline Ciatharaka Murage1 acre - jointly

It is so decreed.

DATEDand delivered at Chuka this 3rd day of November 2016.

A. MABEYA

JUDGE

Judgment read and delivered in open court in presence of all the parties.

A.MABEYA

JUDGE

3/11/2016