John Mwirigi M’marete v Esther Tirindi Kubai & Grace Mataria M’ithili [2017] KEHC 1903 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 231 OF 2009

IN THE MATTER OF THE ESTATE OF JACOB MARETE KAIBUI - DECEASED

JOHN MWIRIGI M’MARETE .........................................APPLICANT

VS

ESTHER TIRINDI KUBAI..............1ST PETITIONER/RESPONDENT

GRACE MATARIA M’ITHILI..........2ND PETITIONER/RESPONDENT

RULING

Grant of Letters of Administration made on 28th September 2010 and confirmed on 29th February 2012 was revoked by consent of applicant in application dated 12th January 2015 together with the Petitioner and their advocates and fresh grant made Jacob Marete Kaibui and Grace Mataria M’Ithili.

The 2 administrators were directed to file joint application for confirmation and distribution of the estate.  Where agreeable and in default each to file separate modes of distribution on 20th September 2017.  Mr Mokua Advocate for the Petitioner proposed that determination be made based on affidavits filed in support or opposition of modes of distribution.

Mr Bwonwonga Advocate for Objector/Protestor had no objection.  The Protesters mode of Distribution was filed on 20th September 2017, and it provides how parcels No. L.R. Kiira/Naari/311 and Ntima/Ntakira/3821 should be distributed i.e L.R. Kiirua/Naari/311

1. Esther Tirindi Kubai – 0. 5 acre

2. Grace Mataria   1. 50 acres

3. Rachel Kajuju – 0. 5 acres

4. Naomi Mwenda – 0. 5 acre

5. Evangeline Nkatha – 0. 5 acre

6. John Mwirigi – 6. 89 acres

L.R. Ntima/Ntakira/3521

1. Esther Tirindi Kubai – 0. 2 acre

2. Grace Mataria   0. 16 acres

3. Rachel Kajuju – 0. 16 acres

4. Naomi Mwenda – 0. 16 acres

5. Evangeline Nkatha – 0. 16 acres

6. John Mwirigi – 0. 16 acres

On the other hand Grace Mataria M’Ithili made her proposal on affidavit sworn on 6th June 2017 as follows:-

L.R Kiirua/Naari/311-9. 45 acres

1. Esther Tirindi Kubai

2. Grace Mataria

3. Rachel Kajuju

4. Naomi Mwenda

5. Evangeline Nkatha

6. John Mwirigi

To share equally.

L.R.Ntima/Ntakira/3821 approximately one acre also to be share equally.

At paragraph 6 of the affidavit of Grace Mataria M’Ithili, it is shown that Harun Kimathi who was son to the deceased also died.  It is not indicated whether he died before or after the deceased death.

It is not indicated if he had any surviving beneficiaries and/or dependants.  On the other hand on 20. 9.2017, the court was informed that Esther Tirindi the daughter of the deceased had also died pending the succession cause and her son Solomon Kimaita was in court on her account.

John Mwirigi M’Marete does not explain criteria for his mode of distribution and the only obvious reason would be that he is the only son and therefore being a man is entitled to benefit more from the estate.

The law of succession and the constitution however treats everyone equally before the law and it would be infringement of fundamental rights and freedoms to make distribution based on the gender of the children of the deceased.

An order will therefore issue that the intestate Estate of the deceased be shared equally amongst the children of the deceased or where dead their survivors to get their due portions.

John Mwirigi Marete’s share should put in consideration where his family is currently settled on either of the 2 parcels of land making up the estate.

Orders Accordingly.

HON. A.ONG’INJO

JUDGE

9. 11. 2017

Before Adwera – J

Penina – C/A

1st & 2nd Petitioners – P/P

Applicant

Mr Gitonga Advocate holding brief for Mr Bwonwonga for Protester

Mr Mokua Advocate for Petitioners.

Order

Ruling delivered, dated and signed in court on 9th November 2017.

HON. A.ONG’INJO

JUDGE