[2022] KEHC 13683 (KLR)

Nkatha & another v Gituma & 2 others (Succession Cause 294 of 2012) [2022] KEHC 13683 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13683 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 294 of 2012

EM Muriithi, J

October 6, 2022

Between

Susan Nkatha

1st Administrator

Charles Mutua

2nd Administrator

and

Justus Gituma

1st Protestor

Barthlomew M. Mbogori

2nd Protestor

James Mwichuiri

3rd Protestor

Ruling

1. This is a ruling on a summons brought under certificate of urgency dated August 3, 2020 pursuant to rules 49, 59 & 73 of theProbate and Administration Rulesby the applicant. After granting prayer 1 of the said application on August 12, 2020, the court directed the district registrar to visit the scene to ascertain where exactly the additional portion of 0. 08 ha awarded to the applicant by the court, vide its ruling delivered on June 25, 2020 should be excised from. The district registrar visited the scene on December 3, 2021 and filed the scene visit report dated then.

2. The applicant, in her submissions filed on May 31, 2022 urges that, although she received the smallest portion of the property, she was only requesting the court to order that the portion of 0. 08 Ha be excised from the best parts of the property and not the part proposed by the other beneficiaries which is hilly, economically unproductive and near the stream. In her view, the subdivision of the LR No Ntima/Ntakira/537 (henceforth called the estate property) was done in a discriminatory manner as the other beneficiaries received lion’s shares of the best parts of the estate property thereby leaving the smallest share to her. She suggests that the said portion be excised from either part c or x or y as shown on the rough sketch map attached to the district registrar’s report.

3. The co-administrator and the protestors did not file any responses and/or submissions.

Analysis and determination 4. The question this court is tasked to answer is what entails equality in sharing of the estate property. Is it in terms of quality or acreage? or both?

5. The applicant’s gravamen is where the extra 0. 08 Ha ought to be excised from. Whereas the co-administrator proposes that the disputed portion be excised from part d measuring 0. 08 ha, the applicant on the other hand demands part c measuring 0. 052 ha. The district registrar, in his scene visit report, observed that part c, which was just behind the co-administrator’s homestead, was being utilized by his son namely Patrick Kinoti. The district registrar also observed that part d was being utilized by the co-administrator.

6. This court rejects the allegations by the applicant that part d is economically unproductive and barren, as the district registrar, in his report, noted that there were blue gum trees, maize plantation, napier grass and a few coffee trees planted there.

7. While part c is occupied and being utilized by the co-administrator and his family, parts x and y are occupied by Francis Murithi and M’Mbogori M’Bagaine, respectively.

8. It is factual that parts of the estate property may be better and productive than others, and therefore the ideal situation would be that all beneficiaries get a share of the best land and also that on the hillside. Nonetheless, that may be impossible, and what the court should strive to achieve is a fair and equitable distribution of the estate property. It is equity and equality rather than equality in acreage alone that should determine matters of distribution of estates between beneficiaries.

9. If this court were to order that the applicant’s extra portion of 0. 08 ha be excised from either part d, x and y, that would fundamentally disrupt the occupation by the other beneficiaries.

10. I would respectfully agree with the court in John Maina Gakuo &anotherv Veronica Wanjiku Gakuo (2020) eKLR (Ngaah Jairus J) that:“[T]he notion of equality of shares amongst the houses or the children, is not the decisive factor in the distribution of a net intestate estate in a polygamous family set-up; rather, it is equity, fairness and, ultimately the discretion of the court that count; exercise of that discretion in any particular way will, of course, take into account those factors that have been expressly specified in section 40(1) as necessary and, no doubt, the peculiar circumstances of each particular case.”Distribution of estates to accord with areas of beneficiaries’ prior settlement.

11. Would it be fair and equitable to have the beneficiaries uprooted from one part of the estate and settled elsewhere on the same estate? Definitely Not. In Elijah Matumbi M’nkanata v David Mutuma M’nkanata [2021] eKLR, Meru HCCA No 157 of 2019, this court held that the distribution of assets among beneficiaries should as much as possible coincide with and correspond to the areas of their prior settlement so as not to disrupt their long occupation thereon, as follows:“In the intestate distribution of estates, there is considerable merit in the proposition that regard should be had of the respective area or parcels or other property of the estate that various heirs may have over time with allocation by the deceased, been in possession although such possession is not perfected into title and where such heirs have developed such portions of the estate property during the period of their occupation, unless the size of the estate and scheme of sharing does not permit the heirs to retain all or part of such portion of the estate. In the absence of such or other compelling reason the portion held by the respective beneficiaries in the estate assets should be upheld so that there is minimal disruption of the long occupation of the beneficiaries.”

Orders 12. Accordingly, taking all the factors into consideration, and in fairness and equity to the parties herein, this court allows the summons dated August 3, 2020 in the following terms:1. The extra 0. 08 ha awarded to the applicant vide the ruling of the court delivered on June 25, 2020 shall be part d, which measures 0. 08 ha. As proposed by the co-administrator.2. The status quo prevailing be maintained until the said portion has been successfully transmitted to the applicant.3. This being a family dispute, each party is ordered to bear their own costs.Order accordingly.

DATED AND DELIVERED THIS 6TH DAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Ms. Gikundi, Advocate for 1st Administrator.Mr. J. Mutuma, Advocate for the 2nd Administrator.