In re Estate of Stephen Kimathi Thumbi (Decesed) [2022] KEHC 12029 (KLR)

In re Estate of Stephen Kimathi Thumbi (Decesed) (Succession Cause 47 of 2000) [2022] KEHC 12029 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12029 (KLR)

Republic of Kenya

In the High Court at Kitale

Succession Cause 47 of 2000

LK Kimaru, J

June 7, 2022

IN THE MATTER OF THE ESTATE OF STEPHEN KIMATHI THUMBI – DECEASED

Between

Esther Wangare Thumbi

1st Petitioner

Joseph Wainaina Thumbi

2nd Petitioner

and

Margaret Njeri Thumbi

Objector

and

Eunice Wamboi Maina

Applicant

Judgment

1. Stephen Kimathi Thumbi, the deceased to whose estate there proceedings relate died on 15th June 1985. He left behind eight survivors being:1)Esther Wangare Thumbi – Widow2)James Mwangi – Son3)Joseph Wainaina – Son4)Francis Wachira – Son5)John Ndegwa – Son6)Evans Watari - (Son – now deceased)7)Daniel Kanya – Son8)Margaret Njeri – Daughter

2. The only property that the deceased owned and which comprise his estate is parcel No. Sinyerere Scheme Plot No. 54 measuring 22. 8 acres.

3. The parcel of land was previously distributed by the administrators to the beneficiaries, specifically the sons excluding Margaret Njeri, the daughter. According to one of the administrators, Joseph Wainaina Thumbi, the family had agreed that Margaret would inherit the portion that was inherited by their mother being two (2) acres. Margaret Njeri on her part, is adamant that as the daughter of the deceased, she had an equal right to inherit an equal share of her father’s estate.

4. This court heard the parties in regard to how the property that comprise the estate of the deceased should be distributed. According to Sections 37 and 38 of the Law of Succession Act, all the children of the deceased are considered equally irrespective of whether they are sons or daughters. Of course, the widow of the deceased has priority when it comes to distribution of the estate of the deceased. However, from the evidence adduced in this case, it was clear that it is the desire of the widow that all her children, including herself should inherit , in equal shares, the property that comprise the estate of the deceased.

5. In the premises therefore, this court revokes the certificate of confirmation of grant issued on 4th November 2021 which specified a mode of distribution that excluded Margaret Njeri, a daughter of the deceased and substitutes it with the following mode of distribution:i)The parcel of land known Plot No. 54 Sinyerere Settlement Scheme shall be distributed equally among the eight beneficiaries of the deceased meaning that each beneficiary shall get 2. 85 acres.The share of Evans Watari – deceased shall be inherited by his wifeEunice Wamboi Maina.ii)The widow, Esther Wangari Thumbi shall inherit the portion of land around her matrimonial home.iii)Eunice Wamboi Maina, the widow of Evans Watari shall inherit the land around the house that her deceased husband had constructed.iv)The roads of access that shall be created when the parcel of land shall be surveyed shall be contributed equally and prorata to the respective shares of each beneficiary.v)There shall be no orders as to costs as this is a succession dispute.

DATED AT KITALE THIS 7TH DAY OF JUNE 2022. L. KIMARUJUDGE