[2018] KEHC 3804 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

SUCCESSION CAUSE NO. 257 OF 2014

RE ESTATE OF SAMUEL KARANJA MWANGI alias

SAMWELKARANJA MWANGI (DECEASED)

ROSE NYAKAYU KARANJA.........................................PETITIONER

VERSUS

TIMINA NYAMBURA KARANJA..................................PROTESTOR

JUDGMENT

1. Samuel Karanja Mwangi (hereafter the deceased) died intestateon 13th May 2006. A dispute has arisen over the distribution of his free estate.

2. The deceased was polygamous. He was survived by two widows: Rose Nyakayu (hereafter the petitioner) and Timina Nyambura (hereafter the objector). The petitioner was not blessed with children. The objector has fourchildren: a son and three daughters.

3. The petitioner applied for a grant. She named her co-wife and the four children as heirs. She proposed that the net intestate estate be shared equally between the two houses.

4. The objector filed an affidavit of protest on 22nd August 2017. She listed additional assets that had been omitted from the schedule. She proposes that her house gets two thirds of the estate; the petitioner to get only one third.

5. I recorded viva voceevidence. The protestor relied largely on her affidavit of protest. She conceded that she was the second wife. She married the deceased in 1989. That fact is not disputed by the petitioner. She denied that the deceased purchased the land or other assets before the second marriage. She said that since she has four children, she should get a larger portion of the estate.

6. The protestor called one other witness: Waithaka Ashford. He is a younger brother of the deceased. He said that before his brother died, he instructed him to divide the tea bushes on Loc. 19/Rwathia/126 equally between the two widows.

7. The petitioner testified that she married the deceased in 1975. She could not tell when the two pieces of land or shares were bought by the deceased. She insisted that the net intestate estate be shared equally between her and the protestor.

8. There is no dispute that the surviving dependents are-

(a) Rose Nyakayu Karanja, 1st widow

(b) Timina Nyambura Karanja, 2nd widow

(c) Simon Waweru Karanja, son

(d) Peris Muthoni Karanja, daughter

(e) Margaret Nyokabi Karanja, daughter

(f) Ann Wangari Karanja, daughter

9. The assets are also known. They include two parcels of land and shares namely-

(i) Loc/19/Rwathia/126 measuring 0. 7 acres or thereabouts

(ii) Loc/19/Rwathia/1979 measuring 0. 4 hectares or thereabouts

(iii) Share in Langata Development Company Limited LCD No. 26124

(iv) Share in River Road Corner Hotel

(v) Shares in Standard Chartered Bank

(vi) Shares in Nation Media Group Limited

10. The mere fact that the 1st widow was not blessed with children should not prejudice her. The proposal by the protestor to grant her only one third of the estate is patently unjust. Since the deceased was polygamous and died intestate, section 40 (1) of the Law of Succession Act applies. It provides-

“40 (1) Where an intestate has married more than once under any system of law permitting polygamy his personal and household effects and the residue of the net intestate shall in the first instance be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.”

11. Section 40 does not however take away the discretion of the court to distribute the estate fairly. See Rono v Rono & another [2008] 1 KLR (G&F), [2005] 1 KLR 538 at 553. In Esther Wanjiru Githatu v Mary Wanjiru Githatu, Eldoret High Court P&A 244 of 2002 [2016] eKLR, I held that it was unjust to relegate the 1st widow to the same position as the youngest child of the subsequent widows.

12. Having reached that conclusion, the estate of the deceased shall be divided equally between the two houses of the deceased.

13. Half of all the properties listed in paragraph 9 of this judgment shall thus go to the 1st widow (the petitioner). The other half shall devolve to the four children from the second house listed in paragraph 8 above. However, their mother Timina Nyambura Karanja (the protestor), shall have a life interest on that half of the property.

14. The grant shall be confirmed in terms of this judgment. In the interests of justice, there shall be no order on costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 4th day of October 2018.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:

Petitioner (in person)

Protestor (in person)

Ms. Dorcas and Ms. Elizabeth, Court Clerks.