In the Matter of the Estate of the Late Johana Kamau Mwathi - Lucia Wangeshi Kamau & Another v Wanjiku Kamau

High Court of Kenya

22 January 2019

HCH. K. Chemitei

1,044 words in judgment

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The bottom line

When dividing a polygamous estate, the court mandates an equal split between the two households before individual distribution occurs.

What this practically means

Executive summary

This ruling on distribution by the High Court at Kitale in Succession Cause No. 41 of 2006 concerned the estate of the late Johana Kamau Mwathi, recognized as a polygamous man with two houses. On 25th June 2015 Karanja J had revoked the certificate of confirmation of grant to pave way for a new certificate, directed beneficiaries to agree on a mode of distribution, and directed division between the two houses under Kikuyu customary law or section 40 of Cap 160. That decision was never challenged on appeal or review. The parties filed rival modes of distribution but could not agree. Chemitei J held that the proper law governing the estate was section 40 of the Law of Succession Act, under which the net intestate estate is divided among the houses according to the number of children in each house, with a surviving wife added as an additional unit. The court found perfect equality between the houses unattainable but held some equity must be attained, and adopted the proposed mode of distribution dated 18/9/2011 and filed on 29/10/2018 as the most reasonable and efficacious, since it shared each capital asset equally and equitably between the houses. The court declined to distribute directly to individual beneficiaries because several parties had settled and developed portions individually, and left gender questions within each household to the respective houses. The court ordered the detailed distribution of land, machinery, accounts and shares between the two houses, deferred the Nakuru Stadium Flats pending resolution of litigation, allowed 4 acres to Kaosa & Co Advocates, gave liberty to apply for unprovided assets, and ordered each party to meet their own costs.

Key legal issues

Governing law for distribution of a polygamous deceased's estate

Holding

Section 40 of the Law of Succession Act governs; the estate is to be shared equally between the two houses, with each house apportioning shares among its members.

Reasoning

The court found the deceased was a polygamous man with two houses, as recognized in the earlier ruling of Karanja J which was never challenged on appeal or review. Applying section 40, the court held equal division between the houses was appropriate, leaving internal apportionment to the widows for their children.

p. 1

Choice among rival modes of distribution

Holding

The mode dated 18/9/2011 and filed on 29/10/2018 was adopted as the most reasonable and efficacious, sharing each capital asset equally and equitably between the houses.

Reasoning

The court noted parties had settled and developed portions individually, so direct distribution to beneficiaries would be impractical. The adopted mode gives each household a portion of each asset while allowing parties to trade or dispose of their portions on an individual give-and-take basis.

p. 1

Legal principles established

Where a deceased married more than once under a system permitting polygamy, the net intestate estate is divided among the houses according to the number of children in each house, with a surviving wife counted as an additional unit.
In distributing a polygamous estate, perfect equality between houses is unattainable but equity must be attained.

Court orders

1.Estate distributed equally between the two houses, with House One (first widow) receiving Kitale Municipality No. 6156 (10 acres), Nyakinywa Plot No. 105 (3.3 acres), Cherengany/Kapsara/205 (16.5 acres), Mwago Farm (41 acres), Naivasha Maraigishu Block 8/424 (0.5 acres), Nairobi Block 105/301 (0.25 acres) and specified machinery
2.House Two (second widow) receiving Kitale Municipality Plot No. 6156 (10 acres), Cherengany/Kapsara/205 (16.5 acres), Mwago Farm LR 6628/3 (34 acres), Waumini parcel (10.5 acres), Nawache Maraigishu Block 8/424 (0.5 acres) and specified machinery
3.Accounts and shares listed to be shared equally between the two houses, with liabilities settled from account proceeds before sharing
4.Nakuru Municipality Block 2/80 and 2/81 (Stadium Flats No. 703 Nakuru) to be shared equally between the two houses once the pending litigation is resolved
5.4 acres out of Kitale Municipality 6156 to Kaosa & Co Advocates to be shared equally between the two houses
6.Beneficiaries at liberty to apply in respect of any assets not provided for
7.Each party to meet their respective costs

Jurisdiction invoked: Law of Succession Act (Cap 160), succession jurisdiction of the High Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In the Matter of the Estate of the Late Johana Kamau Mwathi - Lucia Wangeshi Kamau & Another v Wanjiku Kamau", Case Analysis (2019). Succession Cause No. 41 of 2006. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.