In re Estate of Zaverio Njeru M’abore Njiru (Deceased) [2023] KEHC 25205 (KLR)

In re Estate of Zaverio Njeru M’abore Njiru (Deceased) (Succession Cause 4 of 2018) [2023] KEHC 25205 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25205 (KLR)

Republic of Kenya

In the High Court at Chuka

Succession Cause 4 of 2018

LW Gitari, J

November 8, 2023

Between

Felister Mbiro

Administratrix

and

Sabastian Murungi

Administrator

Judgment

1. This cause relates to the estate of the late Zaverio Njeru M’Abore Njiru (deceased) who died intestate on 17th August, 1987.

2. The Administrator, as a son of the deceased, filed a petition for a grant of letters of administration in respect of the subject estate. He however left out the Administratix from the list of beneficiaries yet she is a daughter of the deceased.

3. Subsequently, the Administratrix filed summons for revocation of grant seeking the revocation of the grant issued to the Administrator herein. On 29th June, 2009 the initial grant issued to the Administrator was revoked and a fresh grant was issued jointly in the names of the Administrator and Administratrix herein.

4. Vide summons for confirmation of grant dated 8th November, 2018, the Administratrix applied for the confirmation of the grant issued to her.

5. The Administrator, through his Affidavit of Protest sworn on 12th January, 2021, opposed the proposal by the Administratrix and gave his own proposal on how the estate should be distributed.

6. The hearing of the protest proceeded by way of viva voce evidence.

The Protestor’s Case 7. PW1 was Sebastian Murungi Boore, the Administrator/Protestor herein. He testified that in 2004, the family of the deceased met and agreed that he should be the person to proceed with the administration of the estate of the deceased. That he then obtained a grant of letters of administration in respect of the subject estate and therefore does not know how the Administratrix also obtained letters of administration. That later, he realized that he had left out the Administratrix from the distribution of the estate. According to him, the Administratrix gave out a share of the estate to her first born child and left out children of their late brother William. It is the Protestor’s case that the deceased had set aside a parcel of land for the female beneficiaries and that one Sofia Kaari was left in charge of that share to be given to the female beneficiaries.

The Administratix’s Case 8. Felister Mbiro, the Administratrix/Applicant herein, testified as DW1. She adopted her witness statement dated 29th October, 2019 as well as affidavits in support of the summons for confirmation of grant as her evidence in chief. It is her case that the family agreed that she should be the Administratrix of the estate of the deceased and that the Administrator did not inform her when he filed the petition for a grant of letters of administration intestate. That her proposal is that she gets an equal share of the estate as her brothers and she be allowed to hold the share for the late Gregory Njiru in trust for his family.

Issues for Determination 9. Having considered the evidence on record and the submissions by counsel, the only issue that arises for determination by this court is whether the protest by the Administrator herein is merited.

Analysis 10. It is not in dispute that the deceased herein died intestate and was survived by the following children:a.William Miriti – deceasedb.Henry Ireri – deceasedc.Gregory Njiru – deceasedd.Felister Mbiro Njerue.Sebastian Murungi

11. It is also not in dispute that the only property that comprises the estate of the deceased is land parcel number Mwimbi/Murugi/982 measuring approximately 8. 65 Acres (3. 46 Ha).

12. The parties herein also agree that the Henry Ireri was given a portion of land measuring 4 Acres during the lifetime of the deceased and that the family of the said Henry Ireri have no interest in the estate of the deceased.

13. At paragraph of her affidavit in support of the summons for confirmation of grant, the Administratrix proposed for the subject estate to be equally shared among the four (4) children of the deceased as follows:;a.Paulina Mukwanyaga William – 1. 64 Acres Representing theb.Zipporah Mukwanjeru Njagi – 0. 50 Acres share of William Miritic.Felister Mbiro Njeru – 2. 14 Acresd.Sebastian Murungi – 2. 14 Acrese.Alexander Njeru – 2. 14 Acres – In trust for the family of Gregory Njiru

14. In her further supporting affidavit sworn on 24th February, 2022, the Administratrix amended her proposal for the mode of distribution of the estate to be as follows:a.William Miriti (deceased) – 2. 14 Acres (His share to be held by the Administratix hereinin trust of his family and his estate)b.Felister Mbiro Njeru – 2. 14 Acresc.Sebastian Murungi – 2. 14 Acresd.Gregory Njiru – 2. 14 Acres (His share to be held by the Administratix herein in trust for his family and his estate)

15. The Administrator has proposed for the estate of the deceased to be distributed as follows:a.Pauline Mukwanyaga William - 2. 66 Acresb.Sabastian Murungi M’Bore – 2. 66 Acresc.Alexander Njeru – 2. 66 Acresd.Felister Mbiro Njeru – 0. 65 Acres (In trust for, herself and Sophia Kaari)

16. In his protest, the Administrator admits that he proposed that a lesser share be distributed to the Administratrix herein for the reason that she is a married daughter of the deceased. According to him, the mode of distribution proposed by the Administrator is not fair as the Administratrix is seeking to allocate herself a lion share of the estate (2. 14 Acres) without regard to the sons yet she does not live on the estate since she is married and lives elsewhere.

17. Daughters have a right to inherit their father’s property regardless of their marital status. Article 27(1) and (2) of the Constitution of Kenya 2010 outlaws any form of discrimination and provides that every person is equal before the law and enjoys equal protection and equal benefit of the law.

18. Further, Section 38 of the Law of Succession Actprovides for equal distribution among the surviving children of the deceased without discrimination to the gender or marital status or gender of the children. Thus, distribution of the estate of the deceased which discriminates some beneficiaries in any way is not only irregular but it is also unlawful.

19. In the case ofStephen Gitonga M’murithi v Faith NgiraMurithi [2015] eKLR, the Court of Appeal stated that: “Section 38 enshrines the principle of equal distribution of the net intestate estate to the surviving children of the deceased irrespective of gender and whether married and comfortable in their marriage or unmarried.”See also Daniel Mwongera M’Iringo –v- Lucy Karambu M’Ikia (2017) eKLR for the same proposition.

20. Based on the above legal provisions and authorities, it follows that the protest by the Administator cannot be sustained in law as the same would result in the discrimination of the Administratrix on the ground that she is a married daughter of the deceased.

Conclusion 21. For the reasons stated above, I find that the protest is without merits and is dismissed. The estate of the deceased should be distributed equally amongst his lawful dependants. The estate should be distributed as proposed by the administratix.That is to say-a.William Miriti (deceased) – 2. 14 Acres (His share to be held by the Administratix herein in trust of his family and his estate)b.Felister Mbiro Njeru – 2. 14 Acresc.Sebastian Murungi – 2. 14 Acresd.Gregory Njiru – 2. 14 Acres (His share to be held by the Administratix herein in trust for his family and his estate)I make no orders as to costs.The grant be confirmed and distribution be as stated in this Judgment.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 8TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE