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MagistratePartially AllowedSuccession Cause No E098 of 2022· [2024] KEMC 107 (KLR)

In re Estate of Justus M’kirera Murebu (Deceased) (Succession Cause E098 of 2022) [2024] KEMC 107 (KLR)

Magistrates' Court (Succession)
28 June 2024
TST. A. Sitati
1,557 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that children who already received land from their father while he was alive cannot inherit again when his estate is divided.

What this practically means

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Executive summary

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This was a succession cause before the Senior Principal Magistrate's Court at Githongo concerning the confirmation of a grant and the mode of distributing Abothuguchi/Katheri/802, measuring 3 acres, in the estate of the deceased. The petitioner, a widow of the deceased, proposed a distribution allocating 1 acre to herself, 1½ acres jointly to Stanley Mwirigi Kirera and his son Nelson Mutuma Mwirigi, and ¼ acre each to two grandchildren, wholly excluding the protestor, Lydia Karwitha Mbogo, a daughter of the deceased. The protestor filed a protest and supplementary affidavit contending she had been disinherited, that the grandchildren were wrongly listed as direct beneficiaries, and that the deceased had during his lifetime gifted 3 acres each to Silas Mbaabu Kirera (through his widow Beatrice) and Stephen Kimathi Kirera, proved by a mutation form and a sale agreement, thereby excluding them from the net estate. She sought equal sharing among the daughters and the widow. The petitioner conceded the inter vivos gifts and relied on a family meeting resolution. The court applied section 42 of the Law of Succession Act and the Micheni Aphaxard Nyaga decision on gifts inter vivos, holding that Silas's family and Stephen had already received their shares and were excluded from the net estate, and that Stanley's children could not be super-imposed on the protestor. The protest was upheld. The court ordered the 3-acre parcel distributed equally among the four daughters and the widow, issued a certificate of confirmation of grant, and allowed 30 days' right of appeal.

Key legal issues

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01

Whether beneficiaries previously gifted land inter vivos by the deceased should share in the net intestate estate

Holding

Silas (through his widow) and Stephen, having each been gifted 3 acres during the deceased's lifetime, are excluded from the distribution of Abothuguchi/Katheri/802

Reasoning

The court relied on the mutation form and sale agreement produced by the protestor, which the petitioner conceded, to find the deceased gifted 3 acres each to Silas (through his widow Beatrice) and Stephen. Section 42 of the Law of Succession Act requires previous benefits to be brought into account, so their gifts exhaust their entitlement and remove them from the net intestate estate of parcel 802.

p. 3
02

Whether grandchildren (children of Stanley) should be listed as direct beneficiaries

Holding

Stanley's children cannot inherit from the net intestate estate of parcel 802 as their father's line had already been provided for

Reasoning

The protestor contended the grandchildren were wrongly listed as direct beneficiaries. The court agreed that since their uncle Stephen had already received his share and Stanley's family had been provided for through inter vivos gifts, Stanley's children could not be super-imposed on the protestor in the distribution of the remaining 3 acres.

p. 4

Legal principles established

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  • Property given to a child, grandchild or house during the deceased's lifetime must be brought into account when distributing the net intestate estate (section 42, Law of Succession Act)

Court orders

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  1. 1.Abothuguchi/Katheri/802 measuring 3 acres to be distributed equally amongst Rael Gaceri Karuri, Isabella Gatwiri Karuri, Susan Kanja Mbogo, Lucy Mwendwa M'Kirera and Tabitha Karuki (widow)
  2. 2.Certificate of confirmation of grant issued in the equal sharing identified above
  3. 3.Right of appeal is 30 days

Authorities

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Legislation

  • Law of Succession Actsection 42

Cases cited (3)

  • Republic v Institute of Certified Public Secretaries of Kenya Ex Paerte Mundia Njeru Geteria
    (2010) eKLR
  • Banque De Moscou v Kindersley
    (1950) 2 ALL ER 549
  • Micheni Aphaxard Nyaga & 2 others v Robert Njue & 2 others
    [2021] eKLR
Jurisdiction invoked
Law of Succession Act - summons for confirmation of grant

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 Justus M’kirera Murebu (Deceased) (Succession Cause E098 of 2022) [2024] KEMC 107 (KLR)", Case Analysis (2024). Succession Cause No E098 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/107/eng@2024-06-28

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