In re Estate of M’imwonyo M’mukunga (Deceased) (Succession Cause 35 of 2017) [2024] KEMC 109 (KLR)
The bottom line
#A Kenyan court split a polygamist's estate into five equal shares and refused to revoke the administration grant, fixing distribution instead.
What this practically means
#Executive summary
#Key legal issues
#Mode of distribution of a polygamist's intestate estate
The estate is to be subdivided into 5 equal portions corresponding to 5 units (the surviving widow, the petitioner son, the daughter, and the shares of two deceased sons vesting in their 7 and 6 children respectively), applying section 40 of the Law of Succession Act
The court adopted the unit-counting approach in section 40 of the Law of Succession Act as explained in Re Estate of Joseph Eric Owino and applied in Rono v Rono, Re Estate of Benson Ndirangu Mathenge, Re Estate of Nelson Kimotho Mbiti and Estate of Ainea Masinde Walubengo: the estate is divided among houses by number of children in each house with surviving wives counted as additional units.
Whether the confirmed grant should be revoked on grounds of imbalanced distribution and lack of consent
Revocation was declined; rectification of the mode of distribution was the appropriate remedy
Relying on Mary Wangari Kihika v John Gichuhi Kinuthia & 2 Others, the court held that revocation is an adverse and monumental order; since the matter had been ongoing and the parties only wished to be allotted their rightful shares, revocation would serve no useful purpose and would prolong the distribution. The court instead adjusted the distribution directly.
Legal principles established
#- Where an intestate died a polygamist survived by two widows and children, the estate is divided among the houses according to the number of children in each house, adding any surviving wife as an additional unit, per section 40 of the Law of Succession Act
- Revocation of a confirmed grant is a drastic remedy that will be declined where it would serve no useful purpose and the parties only seek their rightful shares
Court orders
#- 1.The deceased's total survivors for the purposes of section 40 of the Law of Succession Act, counting widows and children as units, were five (5): Martha M'Imwonyo (widow), Joseph Kimathi (son), Mardarina Kajira (daughter), Silas Mbogori (now deceased, survived by 7 children) and Sabastian Murugu (deceased, survived by 6 children)
- 2.The 2 parcels shall be subdivided into 5 portions and shared equally amongst all the five (5) survivors; for survivors now deceased, their respective children shall inherit their shares in equal portions
- 3.Revocation of the grant was declined as it would serve no useful purpose
- 4.A certificate of confirmation of grant to issue
- 5.Right of appeal is 30 days
- Jurisdiction invoked
- Law of Succession Act (Cap 160) - probate and administration of intestate estates, including Section 40 on polygamous estates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of M’imwonyo M’mukunga (Deceased) (Succession Cause 35 of 2017) [2024] KEMC 109 (KLR)", Case Analysis (2024). Succession Cause No 35 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/109/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.