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MagistratePartially AllowedNot stated in the judgment· [2023] KEMC 298 (KLR)

In re Estate of M’rutere M’kirea (Deceased) (Succession Cause 130 of 2021) [2023] KEMC 298 (KLR)

Magistrates' Court (Succession)
18 December 2023
TST. A. Sitati
1,233 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that in polygamous intestacy, family land must be divided strictly by statutory formula, counting lifetime gifts against each beneficiary's share.

What this practically means

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Executive summary

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The Petitioner filed a Summons dated 1st August 2023 for confirmation of a grant proposing distribution of LR Kibirichia/Kibirichia/4: the three sons (John Mugambi Ruteere, Julius Mutuma Ruteere and Paul Murithi Ruteere) to take 6 acres equally (2 acres each), with the remaining balance shared equally among the daughters and trustees of the deceased's two houses. Three protestors did not object to the sons' shares but contended that, the deceased having had two wives (Martha Tirindi, mother of 4, and Veronica Ruteere, mother of 9, both deceased), the balance should first go to the respective houses, with each house's daughters sharing only 1 1/4 acres equally. The Administrator and other beneficiaries maintained that the deceased orally directed equal inheritance for the daughters and 2 acres each for the sons. The court identified the sole issue as the correct sharing ratio for the daughters. Applying section 40 of the Law of Succession Act as explained in Re Estate of Shitemi Moyo and Elizabeth Chepkoech Salat, the court held that the estate divides among houses by units, and that under section 42 the sons' oral gifts of 2 acres each are brought into account. Deducting the sons, the 1st house counted 4 units and the 2nd house 9 units, totalling 13 units to share the remaining 2 1/2 acres: 0.76 acres to the 1st house and 1.71 acres to the 2nd house, to be shared equally among the daughters of each house, including the trustees. Each son takes 2 acres. The protest was thus substantially not allowed; distribution proceeded along statutory lines. It was so ordered, with a 30-day right of appeal. No costs order appears.

Key legal issues

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Correct distribution of the residue of a polygamous intestate estate among houses under section 40

Holding

The residue is divided among the houses by number of units (children plus widow), then within each house; the sons' oral gifts of 2 acres each are brought into account under section 42, leaving 13 units to share the remaining 2 1/2 acres

Reasoning

Section 40(1) mandates first-instance division among houses according to the number of children in each house, adding a surviving widow as an additional unit, even where the widows are deceased. Section 42 requires prior inter vivos gifts to beneficiaries to be brought into account. Since the sons were each orally gifted 2 acres, they are deducted, leaving 1st house 4 units and 2nd house 9 units, totalling 13 units sharing the remaining 2 1/2 acres.

p. 3

Legal principles established

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  • Where an intestate was polygamous, the estate is first divided among houses according to the number of children in each house, adding a surviving wife as an additional unit; the court has no discretion to deviate from the statutory principles in a contentious matter
  • Property gifted by the deceased during his lifetime to a child or house is brought into account under section 42 in determining the share of the net intestate estate

Court orders

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  1. 1.The sons (John Mugambi Ruteere, Julius Mutuma Ruteere and Paul Murithi Ruteere) each inherit 2 acres as orally gifted by the deceased
  2. 2.The remaining 2 1/2 acres to be divided among 13 units: 1st house (4 units) gets 0.76 acres shared equally by its daughters; 2nd house (9 units) gets 1.71 acres shared equally by its daughters including the Trustee of Nick Mutembei and Trustee Enner Nkatha
  3. 3.Right of appeal is 30 days
Jurisdiction invoked
Law of Succession Act (Cap 160) - summons for confirmation of grant; section 40 and section 42

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’rutere M’kirea (Deceased) (Succession Cause 130 of 2021) [2023] KEMC 298 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/298/eng@2023-12-18

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