Peter Mbogua M’mathuku v Festus Mwirigi M’imanyara [2016] KEHC 4637 (KLR)

IN THE  REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 196 OF 2014

IN THE MATTER OF THE ESTATE OF M’MANYARA M’TUANTHUKU (DECEASED)

PETER MBOGUA M’MATHUKU………………………PETITIONER

Versus

FESTUS MWIRIGI M’IMANYARA…………………… RESPONDENT

RULING

Distribution of Estate

[1]        I have been called upon to determine a Protest to Confirmation filed by Festus Mwirigi M’Manyara on 18th October, 2013. In the affidavit of protest,the Protestor averred that the deceased left a Will in which he detailed how his estate, i.e.LR. KIBIRICHIA/KIBIRICHIA/430should be distributed as follows:-

(a)        Joseph M’Imanyara (deceased) to get 3 acres tobe inherited by the wife Mary Kainda, and his children.

(b)       Festus Mwirigito get 3 acres

(c )      Peter Mbugua Mathukuto get 1. 50 acres

(d)       Nkirote M’imanyara, Nchekei M’Kirera, Mrs Nthang’a Mbui, Mrs. Gacheri M’Imanyara and Mrs. Mary Kathambi Kariuki to get 1. 50 acres jointly.

[2]        He therefore proposed the distributionof the estate to be in the above terms.  The protestor did not file submissions despite having been giventime to do so.

[3]        The Petitioner, on the other hand, inhis supporting affidavit sworn on 2nd October, 2013 proposed the estate of the deceased to be distributed as follows:-

(a)       M’Kirimania M’Imanyara – 1. 8 acres

(b)       Peter Mbogua M’Manthuku – 1. 8 acres

(c )      Mary Kaindia Murugu – 1. 9 acres

(d)       Gacheri M’imanyara – 1. 8 acres

(e )      Mwingi M’Imanyara – 1. 8 acres.

[4]        The Petitioner filed submissions dated 11th October, 2015 to reinforce his proposals on distribution. It is worthy of note that the Petitioner averredthat although the deceased left nine (9)dependants, only six of them were to benefit from  the estate of the deceased. But again he eventuallyprovided for only five (5) of them; each to get 1. 8 acres of land. The Petitioner discarded the proposal by the protestor as unfair forhe had given himself 3 acres, Joseph M’Imanyara 3 acres, the petitioner to get 1. 50 acres while the daughters of the deceased will get 1. 50 acres jointly. He was of the view that, this being intestate estate it can only be distributed in accordance with the agreement of the parties or, in absence of such agreement of the parties, to be shared equally among all dependants. He also stated that the Protestoromitted one beneficiary called M’Kirimania M’Imanyara. On that basis, he asked the court to distribute the estate as proposed by him.

DETERMINATION

Alleged Will

[5]        In the Protest filed on 18th October, 2013, Festus Mwirigi M’Imanyara averred that the deceased left a Will detailing how his estateshould be distributed to the beneficiaries. I have scanned through the file and I have not seen any such Will. The Protester did not evenannex the alleged Will inhis Affidavit of Protest sworn on 17th October, 2013. Accordingly, thataverment is unsupported by any document and I will treat it as such. I will now ask myself what the law says about distribution of intestate estate in such situation as this.

[5]        The record shows that the deceased left no surviving spouse but the following children:

a)         Nkirote M’Kirera (daughter)

b)        Nchekei M’Kirera (daughter)

c)         Thanga Mbui (daughter)

d)        M’Kirimania M’Imanyara (son)

e)         Peter Mbogua (son)

f)         Ntibuka Ringu  (daughter)

g)        Jospeh Murugu (son)  deceased

h)        Gacheri M’Imanyara (daughter)

i)          Mwirigi M’Imanyara (daughter)

j)          Kathambi Mwangi (daughter)

[6]        There is no agreement between the parties on distribution. The feuds between the Parties show they cannot agree. Even their proposals on distribution are wide apart. Upon consideration of the proposal by the Protestor, it is most unfair, and is based on a purported or non-existentWill.The proposal also left out M’Kirimania M’Imanyara out of inheritance of his deceased father’s estate.  Similarly, although the proposalby the Petitioner seems attractive, it is has left out all the daughters of the deceased except Gacheri M’Imanyara. No explanations or lawful cause were provided on this omission. Therefore, contrary to the Petitioner’s submissions, his proposal does not accord with law. I am left with no option but to fall back to the law. The appropriate guide hereis Section 38 of the Laws of Succession Act which provides that:

“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisionsofSection 41 and 42 devolve upon the surviving child, if there be one, or be equally divided among the surviving children.”

Following the dictates of law, I order that the estate property shall be equally divided among the surviving childrenof the deceased listed in paragraphs 5 of this ruling to wit;

a)        Nkirote M’Kirera (daughter)

b)        Nchekei M’Kirera (daughter)

c)         Thanga Mbui (daughter)

d)        M’Kirimania M’Imanyara (son)

e)         Peter Mbogua (son)

f)         Ntibuka Ringu  (daughter)

g)        Jospeh Murugu(son)  deceased

h)        Gacheri M’Imanyara (daughter)

i)          Mwirigi M’Imanyara (daughter)

j)          Kathambi Mwangi (daughter)

The share  the deceased son, i.e.Joseph Murugu, shall be held by Mary Kainda Murugu in her own behalf and that of the children of the deceased parent father in equal shares.  Accordingly I confirm the grant issued on 19th April, 2013 in the foregoing terms.

Dated,Delivered and Signed in Open Court at Meru this 15th Day of June, 2016

F. GIKONYO

JUDGE