[2008] KEHC 2322 (KLR)
The High Court found that the trial magistrate erred by considering irrelevant matters, such as the marital status and residence of the daughters, in distributing the deceased's estate. The applicable law, specifically section 35(5) of the Law of Succession Act, mandates equal distribution among the children of the...
Source-derived case information.
- Citation
- [2008] KEHC 2322 (KLR)
- Parties
- Appellant: Susan Watiri Mwangi; Respondent: Mary Wanjiku Macharia
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 56 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Succession, Inheritance Distribution, Intestate Estate, Equal Sharing, Customary Law, Land Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Watiri Mwangi
Appellant
Mary Wanjiku Macharia
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in distributing the deceased's estate contrary to the law of succession.
- 2 Whether the daughters of the deceased are entitled to equal shares of the 2 acres of land left by the deceased.
- 3 Whether the brother's entitlement to 3 acres given inter vivos by the deceased should be disturbed.
Ratio Decidendi
The High Court found that the trial magistrate erred by considering irrelevant matters, such as the marital status and residence of the daughters, in distributing the deceased's estate. The applicable law, specifically section 35(5) of the Law of Succession Act, mandates equal distribution among the children of the deceased. The court held that the 2 acres of land, being the remaining estate after the son had received 3 acres inter vivos, should be shared equally among the three daughters. The brother's entitlement to the 3 acres was not in dispute as it was a gift made by the deceased during his lifetime. The appeal was allowed, and the estate was ordered to be distributed in accordance...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The 2 acres of land shall be shared equally among the three sisters.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 56 of 2005
SUSAN WATIRI MWANGI………………..………………APPELLANT
VERSUS
MARY WANJIKU MACHARIA………………………..RESPONDENT
JUDGMENT
This appeal arises out of decision of Resident Magistrate at Kerugoya dated 18/4/2005 and ruling dated 3/10/2005 Senior Resident Magistrate Succession Cause No. 250/2002. The parties appear in this appeal, Appellant without advocate. The Respondent represented by Mr. Ratoro Esq. from the record there is Judgment made by court and dated 4/2/2005 between the Appellant and Respondent. I do not find any Judgment made on 18/4/2005 and 3/10/2005.
I have perused the record. The parents of the parties died and a piece of land Njuku/Kirima/29 is only assets to be inherited. The Trial court found that the land should be inherited by the brother and unmarried sister. Brother taking 3 acres and Respondent taking 2 acres. The father died in June 1981 during the same year this Act came into operation. However the succession proceedings were commenced in the year 2002.
Before his death the deceased subdivided his land and gave 3 acres to the son Patrick leaving 2 acres in the care of his wife now deceased. The daughters of deceased who are 3, dispute about the inheritance of the 2 acres. The problem is that one daughter resides on the land with her children while the others are residing in their marriage homes. The law is clear where survivors are children of deceased they shall take equally see. (see section 35 (5) of the Act).
The trial magistrate took into consideration irrelevant matters therefore making a decision against the law.
I therefore allow the appeal and order the 2 acres to be shared by 3 sisters equally as there is no objection to their brother keeping what he was given by the deceased during his life time.
It is so ordered. No costs awarded.
Dated this 22nd April, 2008.
J. N. KHAMINWA
JUDGE
22/4/2008
Khaminwa – Judge
Njue – Clerk
Mr. Rakoro – present
Appellant in person
Read in open court.
J. N. KHAMINWA
JUDGE