Peter Kaluma Makula v Julius Mbithi Makula & James Makula Nzuva [2015] KEHC 2036 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 671 OF 2010

IN THE MATTER OF THE ESTATE OF THE LATE SAMSON MAKULA NZUVA – DECEASED

PETER KALUMA MAKULA...............................................PETITIONER

VERSUS

JULIUS MBITHI MAKULA.............................................1ST OBJECTOR

JAMES MAKULA NZUVA..............................................2ND OBJECTOR

JUDGMENT

1.     In the Petition filed herein, the estate of the deceased, Samson Makula Nzuva is reflected as comprising of land parcel No. MACHAKOS/KONZA NORTH BLOCK 1/75.

2.    The beneficiaries are reflected as follows:

a)   Peter Kalume Makula

b)   Julius Mbithi Makula

c)    James Makula Nzuva

3.    A copy of Letters of Administration Intestate was issued herein on the 28th October 2010 with all the three beneficiaries as co-administrators.

4.    The summons for confirmation of grant issued on 12th April, 2012 proposes the sharing of the land on equal basis with each of the beneficiaries receiving 1/3 share of the land.

5.    On 7th June, 2013 two of the beneficiaries, Julius Mbithi Makula and James Makula Nzuva filed an affidavit in protest against the confirmation of the grant that was filed by the co-administrator, Peter Kalume Makula.  It is contended in the affidavit in protest that the true beneficiaries have not been disclosed. It is further deponed that the estate of the deceased was distributed at the family meetings and one grandchild by the name Mutundumya was gifted a portion of the land.

6.    In response to the protest it is contended that any distribution of the estate of the deceased through family meetings amounted to intermeddling with the estate of a deceased person. It is further averred that if the grandson in question should inherit any portion of the land, he should inherit through his father James Makula Nzuva the second objector herein.

7.     When the protest came for directions, the parties opted to canvass the matter by way of written submissions based on the affidavit evidence.  The 1st administrator filed his written submissions, which I have considered. The protestors did not file any submissions.

8.    There is no dispute that the direct beneficiaries of the estate of the deceased are three as captured in the Chief’s letter and in the petition and indeed in the affidavit in protest. There is also no dispute that the deceased left behind one parcel of land.    It is however not clear from the file whether the correct number is MACHAKOS/KONZA NORTH BLOCK 1/75 or MAKUENI/IUANI/320.  These are the two numbers captured in the proceedings herein at different stages.

9.    The Law of Succession (Cap. 160, Laws of Kenya) clearly stipulates that the intestate estate shall be divided equally among the surviving children where there is no surviving spouse (See S. 38). In the case at hand, the estate of the deceased has been divided equally between the three direct beneficiaries.  The attempt to gift one of the grand children of the deceased through family meetings amounts to intermeddling with the estate of the deceased. In any event, it is not denied that the father of the grandchild in question has been given his share.

10.  With the foregoing, I find no merit in the protest and dismiss the same.   Consequently, the grant is confirmed as prayed.

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B. THURANIRA JADEN

Dated and delivered at Machakos this 1st day of October, 2015

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B. THURANIRA JADEN

JUDGE