In re Estate of M’Mucheke M’Mwitari alias Mucheke Mwitari (Deceased) [2018] KEHC 3409 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 204 OF 2004

IN THE MATTER OF THE ESTATE OF M’MUCHEKE M’MWITARI alias MUCHEKE MWITARI (DECEASED)

HARRISON MWIRIGI ……..…....PETITIONER/RESPONDENT

-VS-

SAMUEL MWORIA ………...….…….. OBJECTOR/APPLICANT

R U L I N G

1. M’MUCHEKE M’MWITARI alias MUCHEKE MWITARI (“the deceased”)died on 22nd June, 1986. On 18th June, 2004, the Chief of Chugu Location wrote a letter of introduction wherein he introduced the following as the  dependants of the deceased:-

a) Nkirote M’Mucheke            -       widow (1st wife)

b) Samuel Ngeera                     -       son

c) Hellen M’Mucheke               -       widow (2nd wife)

d) Samuel Mworia                     -       son

e) Elizabeth Kagwiria                -      daughter (married)

f) Zipporah Kairuthi                   -      daughter (married)

g) Juliah Mwendwa                    -      daughter (married)

h) Stellah Nthiori                        -      daughter (married)

i) Harrison Mwirigi Mucheke     -      son

2. The deceased left a piece of land parcel no. NYAKI/CHUGU/ 223 as the only asset forming his estate. On 18th June, 2004, Harrison Mwirigi Mucheke (“the Petitioner”), petitioned for letters of administration of the estate intestate and set out the above listed as the survivors. On 19th October, 2004, the grant was issued to him and confirmed on 8th July, 2008. The entire estate was distributed to the petitioner.

3. By a Summons dated 6th November, 2014, Samuel Mworia (“the Applicant”) objected to the said grant and applied for an inhibition against parcel no. NYAKI/CHUGU/ 223. The grant was revoked and another grant issued to both the petitioner and applicant as joint administrators on 12th June, 2017.

4. It was ordered that the petitioner file an application for confirmation but he failed. The court allowed the applicant to apply for confirmation which he did on 1st March, 2013. The court further directed any other interested party or beneficiary to file their protests if any. None filed any protest but the petitioner filed another summons for confirmation dated 25th June, 2018 which the court treated as a Protest.

5. On the hearing of the summons, none of the parties attended. I have considered the entire record, the applications for confirmation and the summons considered as the protest. The issues for determination is; how should the estate be distributed?

The applicant’s proposal is as follows: -

a) Samuel Mworia                        -       40 points

b) Harrison Mwirigi Mucheke     -       20 points

7. The petitioner’s proposal is as follows: -

a) Harrison Mwirigi Mucheke- 0. 39 Acres

b) Zipporah Kairuthi-0. 21 Acres

c) Samuel Ngeera- 0. 085 Acres

d) Peter Muteithia- 0. 085 Acres

d) Samuel Mworia- 0. 07 Acres

8. The petitioner indicated that the applicant had been given by the deceased 35 acres at Ruiri Rwarera Adjudication Section where he is living with his two wives. I note that the petitioner included in his distribution, one Peter Muteithia without stating who he is or how he is related to the deceased. In this regard, I will disregard him when it comes to distribution.

9. While the applicant excluded everyone else except himself and the petitioner, the petitioner has excluded Elizabeth Kagwiria from his mode of distribution. He has not given any reasons as to why yet she is a daughter of the deceased and she has not renounced her interest in the estate.

10. Under section 38 of the Law of Succession Act Cap 160, Laws of Kenya, an estate of a deceased is to be distributed equally to his children where there is no spouse. In the present case, the parties seem to have agreed to the mode of distribution proposed by the petitioner as they signed the consent filed with the Summons except Samuel Mworia.

11. I have noted that Samuel Mworia did not deny that he had been bequeathed 35 acres by the deceased during his lifetime. Under Section 41 of the Act, the court is enjoined to take that into consideration.

12. In this regard, the estate will be distributed as follows:-

NYAKI/CHUGU/223

a) Samuel Ngeera

b) Elizabeth Kagwiria

c) Zipporah Kairuthi                                  Equally

d) Harrison Mwirigi Mucheke-

13. The above should consider the current occupations for family harmony and integration. Further, the grant issued on 12th June, 2017 is hereby confirmed as above.

14. This being a family matter, I will make no orders as to costs.

It is so decreed.

SIGNED at Meru

A. MABEYA

JUDGE

DATED and DELIVERED at Meru this 11th day of October, 2018.

A. ONG’INJO

JUDGE