In re Estate of Ayub Mwangi Mbogo (Deceased) [2018] KEHC 4964 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

SUCCESSION CAUSE NO. 97 OF 2015

IN THE MATTER OF THE ESTATE OF AYUB MWANGI MBOGO – DECEASED

AND

MICHAEL NGANGA MUGO…..........1ST PETITIONER

RUTH NJERI …....................................2ND PETITIONER

J U D G M E N T

1. This court on 27/10/2016 issued a rectified certificate of confirmation of grant in which Land parcel No. Makutano/Kapsara Block 2/Turbo Munyaka/87 was divided as hereunder among the deceased beneficiaries.

1. Michael Nganga  – 4 acres

2. Wallace Gikonyo  – 4 acres

3. James Kamau     – 4 acres

4. Ruth Njeri           – 7 acres

5. John Njenga         – 3 acres

2. The applicant herein has field the protest to the said grant arguing that she was left behind and being the daughter-in-law  of the deceased she ought to have been given here share.

3. This court ordered the parties to submit their evidence orally. The objector testified and did not call any witness. Her evidence was to the effect that her late husband John Njenga was the first born son to the deceased.  He died at Shimo la Tewa prison in Mombasa and was burried there.  She however said that she had children with him and has been residing on the land.

4. She testified that earlier on she had a case at the  Land Disputes Tribunal where  she had sued the deceased.  The tribunals ruling was modified by the court by the court vide had case No. 64/1986 as per the annexture 1 to her supporting affidavit.  According to her evidence she is entitled to the 5 acres in which the tribunal awarded her.

5. The Respondent/Administrator on his part agreed  that the objector was indeed his sister-in-law and that she has all along been residing in the suit property.  The portion she occupies measures 5 acres after being alloted by the land tribunal.

6. The Petitioner however argued that they gave her 3 acres and had it in the names of her later husband John Njenga. They did so, for the simple reason that she sued the deceased and had him incarcerated in jail. She should therefore feel the  pain of transferring the land from her deceased husband to herself !

7. Having heard the parties herein, there is no doubt that the objector is the daughter -in-law to the deceased and that she has all along resided  on the land  with her children.

8.  From the reading of the ruling of the  court vide Kitale  land case No 64/1986 its clear that the court  modified the elders award and ordered  that;

“(2)The applicant however is ordered to allow the respondent to use the 5  acres of the said plot No. 23 Munyaka to feed her 8 children who include the 2 she got with his son.”

9. The same was not to inherit contrary to the objector's  testimony.

10. The question therefore is what is her entitlement?  Should she be given 3 acres, 5 acres or 4 acres? It appears that Michael, Wallace and James are brothers to the later John Njenga. Essentially, if John Njenga  was alive perhaps he would have gotten equal share with the rest of his brothers.

11. In my view therefore, the 4 brothers should get equal shares. It appears that by giving the objector 3 acres and having it in the names of John Njenga, the administrators were seeking a revenge, namely to compensate for the tussle the objector had with the deceased.

12.  More importantly, if the deceased wanted the objector to get 5 acres the court would have stated so categorically.  The 5 acres she has occupied all along was purely for use and not inheritance.

13. Ruth Njeri was given 7 acres.  It was clear that she came from the second house and there was no much objection to the same.

14.  In my view, the 4 brothers ought to share their portions equally. They all have equal right to their father's estate. Their total acreage is 15 acres.  They should each therefore get 3. 75 acres.

15. In conclusion I do  order that land parcel number Makutano/Kapsara Block 2/Turbo Munayaka/87 measuring 7. 285 Ha be shared as hereunder;

1. Michael Nganga  –  3. 75 Acres

2. Wallace Gikonyo –  3. 75 Acres

3. James Kamau     -  3. 75 Acres

4. Dorcas Waithera – 3. 75 Acres

5. Ruth Njenga       – 7 Acres

16.  I find that  there is no  point having the name of the objector's husband who is deceased on the grant.  Ruth Njeri shall hold her portion in trust for herself and her minors from their house.

17.  The grant dated 27/10/2016 be rectified to reflect the above findings. Being a family dispute, each person shall meet their respective costs.

Delivered, signed and dated at Kitale this 17th day of July 2018.

__________________

H.K. CHEMITEI

JUDGE

17/7/18

In the presence of;

Michael Nganga

Court Assistant - Kirong

Judgment read in open court.