In re Estate Chrispin Munjal Ndege (Deceased) [2021] KEHC 9600 (KLR)

IN THE HIGH COURT OF KENYA

AT BUSIA

PROBATE & ADMINSTRATION NO. 4 OF 2008

IN THE ESTATE OF:

CHRISPIN MUNJAL NDEGE........................................................................................DECEASED

BETWEEN

ROSEMARY AOKO MUNJAL............................................................................1ST PETITIONER

AND

NOEL NAMENYA MUNJAL...............................................................................2ND PETITIONER

RULING

1. Rosemary Aoko Munjal the 1st petitioner herein and Noel Namenya Munjal the 2nd petitioner herein are widows of the late Chrispin Munjal Ndege. They have disagreed on the mode of distribution of the estate.

2. The deceased herein died intestate. This was a polygamous union. He was survived by the two widows and four children.  The first petitioner and the deceased had four children while the 2nd petitioner did not have any child.

3. Section 40 of the Law of Succession Act will be applicable in this succession cause for the deceased was polygamous. It provides:

(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 estate 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.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.

4. In this case, there shall be six units. The distribution shall factor any benefit the deceased had given to any beneficiary during his lifetime as envisaged under section 42 of the Law of Succession Act which provides as follows:

Where—

(a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or

(b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35 of this Act, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

5. The petitioners are given 30 days within which to file proposed distribution in line with the above orders. Failure to do so, then the grant to her shall automatically be revoked.

6. Each party shall bear own costs.

DELIVERED and SIGNED at BUSIA this27thday of January, 2021

KIARIE WAWERU KIARIE

JUDGE