In re estate of Mithika M’arachi - (Deceased) [2018] KEHC 3625 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
SUCCESSION CAUSE NO. 352 OF 2004
IN THE MATTER OF ESTATE OF MITHIKA M’ARACHI - (DECEASED)
MITHIKA KIMATHI LAWI........................................................PETITIONER
VS
CHARITY MUKOKI THAKA
STEPHEN MARURI....................................................................APPLICANTS
AND
LUCY KANINI MITHIKA
JESICA KAIMURI MITHIKA..................................................PROTESTERS
RULING
Application dated 18. 9.2017 seeks orders made on 2nd August 2017 by renewed, varied and/or set aside and evidence of 2nd applicant on distribution be taken into consideration.
The application was based on the ground that 2nd applicants proposed mode of distribution had been given to advocate on record but that the advocate didn’t file and failure by an advocate to bring proposal to the attention of the court should not be visited on the 2nd applicant.
The 2nd applicant in supporting affidavit averred that some heirs except for the married sister had settled on the parcels of land in question and have developed the same by planting Miraa trees and building houses as per SM (b). 2nd Applicant claimed his proposed mode of distribution was agreed upon by the clan and he annexed minutes of clan meeting. 2nd applicant said the dispute is over land shared by 1st and 2nd house and that land for 3rd house is not in dispute.
The applicant annexed SM(b) and SMC to his supporting affidavit to show that the beneficiaries are settled on different portions of the estate which should be considered and that the clan had agreed on mode of distribution as per annexure SMC. The document indicates the ten sons of the deceased were present but the 10 daughters failed to attend the sittings on 30th September 2016 and it was resolved that the sons get different portions of L.R. No. 1327 A Athiru/Rujuune together with Miriam Kaari, Purity Nkirote, Macy Kanana, Jesca Kaimuri and Lucy Kanini who are to get 0. 20, 0. 20, 0. 20, 0. 50 and 0. 50 acres each.
For plot No. 79(i) Athiru Rujune it is proposed that:-
Jane Muthomi gets – 0. 50
Joyce Ciorui – 0. 50
Prisca Kurui – 0. 50
Agnes Kalwilo -0. 30
Miriam Kaari –0. 30
Purity Nkirote – 0. 30
Stephen Kiruru–0. 60
Richard Murithi–0. 50
Elias Kirimi – 0. 50
Lawi Kimathi – 0. 50
For plot no. 4572 (B) Athiru Rujune the 2nd applicant proposes that it goes to Janet Wanjoi. The proposal is not signed either by the 2nd applicant or any beneficiary and there is no evidence that any elder presided over the meeting that deliberately on the proposed mode of distribution. By this court determining that the estate is to be shared equally it has not sanctioned the unsettling of the beneficiaries from the portions particularly where they have their homes. The equal shares should consider land they have settled on and if the equal share is more than where they are settled the extra land should be adjacent to the house to avoid unnecessary conflicts. If the 2nd applicant sat down with all beneficiaries and agreed on alternative mode of distribution this court would have no problem reviewing and/or varying its order. As it stands now there is no such consensus. The photographs annexed are meant to show that different beneficiaries have settled on different portions of the land but there is no evidence that the house in the 1st, 2nd or any other picture belongs either to the 2nd applicant or any other beneficiary. Looking at the proposal it appears 2nd applicant Stephen Mururu is just out to enrich himself. After allocating himself lions share in L.R. 1327 A Athiru Rujune 1. 20 he goes ahead to allocate himself another big portion 0. 60 in L.R. 791 (c) Athiru Rujune. This court finds no basis established by the 2nd applicant for review and/or variation of this courts judgements delivered on 2nd August 2017. The application is dismissed with costs.
HON. A.ONG’INJO
JUDGE
17. 7.2018
Before Adwera - J
C/A:- Penina
Mr Muchiri Advocate for 2nd Applicant
Mr Omari Advocate for Protesters.
Protesters Present in person
2nd Applicant – Present in person
Court
RULING DELIVERED, DATED SIGNED AND THIS 27th DAY OF JULY 2018
HON. A.ONG’INJO
JUDGE
Mr Muchiri
We seek leave to do a further affidavit in response to application dated 26. 6.2018.
Order
Leave granted to 2nd applicant to respond to application dated 26. 6.2018.
HON. A.ONG’INJO
JUDGE