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High CourtAllowedSuccession Cause (number not stated in judgment)

In re Estate of M’Impwi M’Ikiugu (Deceased)

High Court of Kenya
21 April 2020
FGF. Gikonyo
884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If dividing an estate equally is impractical or causes family conflict, the court can review and approve a mutually agreed-upon distribution.

What this practically means

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Executive summary

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This succession cause concerned the estate of M’Impwi M’Ikiugu, who died on 11th July 2018 leaving a widow, Beatrice Nkatha M’Impwi, and four other beneficiaries. On 19th December 2018 the court had distributed the estate - parcels Abothuguchi/Kariene/916, 2490 and 2491 and monies in a bank account - equally among the beneficiaries under Section 35 of the Law of Succession Act. The petitioner then applied by consent on 13th January 2020 for review of that judgment, proposing that the protestor, Moses Gituma Impwi, take parcel Abothuguchi/Kariene/2491 (where he lives and has made extensive developments) while the petitioner and three other beneficiaries share the remaining parcels equally. She explained that a surveyor had established that subdividing the land into five equal shares was infeasible, producing hilly, swampy or uneconomical narrow strips, and that the family had reconciled and filed signed consents. The application was unopposed. Applying Order 45 Rule 1(1) of the Civil Procedure Rules as imported into succession law by rule 63 of the Probate and Administration Rules, the court held that although the grounds did not disclose discovery of new matter or an error apparent on the record, the consensual settlement and infeasibility of the original distribution amounted to 'sufficient reason' for review, a course encouraged by Article 159(c) of the Constitution on alternative dispute resolution. The court reviewed the mode of distribution, set aside the earlier certificate of confirmed grant, and ordered a new one issuing with the bank monies shared equally among all five beneficiaries, parcel 2491 going wholly to the protestor, and parcels 2490 and 2491 shared equally among the four other beneficiaries. No costs order was made.

Key legal issues

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01

Whether the grounds for review were established despite not fitting the discovery of new matter or error apparent on the face of the record

Holding

The court found the grounds fell within 'any other sufficient reason' under Order 45 Rule 1(1), given the beneficiaries' consents and the infeasibility of equal subdivision.

Reasoning

The court acknowledged the grounds neither related to discovery of new matter nor error apparent on the record, but held that the amicable settlement among all beneficiaries, the consents filed, and the practical infeasibility of dividing the land into five equal shares without creating uneconomical strips constituted a sufficient reason. This was reinforced by Article 159(c) of the Constitution promoting alternative dispute resolution.

p. 2
02

Whether the proposed distribution adheres to the Law of Succession Act

Holding

The proposed mode of distribution adheres to the principles of equity and equality under Sections 35 and 38 of the Law of Succession Act.

Reasoning

The court noted all beneficiaries filed signed consents to the new mode of distribution and that the proposal adhered to the equity and equality principles in Sections 35 and 38 of the Law of Succession Act, aligning with the earlier judgment which had distributed under Section 35. The unopposed application was therefore allowed and the certificate of confirmed grant set aside.

p. 2

Legal principles established

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  • Review in succession proceedings is available to a party, beneficiary or interested party but must meet the substantive requirements of Order 45 of the Civil Procedure Rules as imported by rule 63 of the Probate and Administration Rules.
  • Mutual settlement of family disputes among all beneficiaries, coupled with infeasibility of the court-ordered distribution, amounts to a sufficient reason for review under Order 45 Rule 1(1).

Court orders

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  1. 1.Review of the mode of distribution in the judgment of 19th December 2018 and adoption of the proposed mode of distribution
  2. 2.Setting aside of the earlier certificate of confirmed grant and issuance of a new one
  3. 3.Monies in A/C No. [xxxx] Equity Bank Meru Branch to be shared equally amongst Beatrice Nkatha M’Impwi (widow), Lucy Kiende Impwi, Gace Mwari M’Impwi, Catherine Mukiri Domisiano and Moses Gitumwa M’Impwi
  4. 4.Abothuguchi/Kariene/2491 to Moses Gitumwa M’Impwi - whole
  5. 5.Abothuguchi/Kariene/2490 & Abothuguchi/Kariene/2491 to be shared equally amongst Beatrice Nkatha M’Impwi (widow), Lucy Kiende Impwi, Gace Mwari M’Impwi and Catherine Mukiri Domisiano
Jurisdiction invoked
Probate and Administration Rules rule 63 importing Order 45 of the Civil Procedure Rules (review jurisdiction in succession matters)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of M’Impwi M’Ikiugu (Deceased)", Case Analysis (2020). Succession Cause (number not stated in judgment). Source:

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