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MagistratePartially AllowedSuccession Cause No 35 of 2017· [2024] KEMC 109 (KLR)

In re Estate of M’imwonyo M’mukunga (Deceased) (Succession Cause 35 of 2017) [2024] KEMC 109 (KLR)

Senior Principal Magistrate's Court at Githongo
28 June 2024
1,382 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 split a polygamist's estate into five equal shares and refused to revoke the administration grant, fixing distribution instead.

What this practically means

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Executive summary

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This is a first-instance ruling in a succession cause before the Senior Principal Magistrate's Court at Githongo, delivered by Hon. T.A. Sitati, Senior Principal Magistrate, on 28th June 2024. The petitioner, Joseph Kimathi M'Imwonyo, obtained letters of administration intestate on 18th September 2017 in the estate of the deceased, who was survived by a widow, sons, a daughter, and grandchildren through two deceased sons. The petitioner filed successive summons for confirmation of grant (6th June 2019, supplementary affidavit 14th October 2019, and a fresh summons 22nd November 2019) proposing distribution of Abothuguchi/Katheri/3175 and Abothuguchi/Katheri/262, later seeking rectification of grant on 2nd November 2022. The objector, Martha M'Imwonyo, filed a summons for revocation and/or annulment of grant dated 10th February 2020, alleging the distribution was imbalanced and made without her consent. The court framed one issue: the mode of distribution, there being no dispute the deceased died intestate survived by two wives. Applying section 40 of the Law of Succession Act and following Re Estate of Joseph Eric Owino, Rono v Rono, Re Estate of Benson Ndirangu Mathenge, Re Estate of Nelson Kimotho Mbiti and Estate of Ainea Masinde Walubengo, the court held the estate should be divided into five equal units, with the shares of deceased survivors passing to their children. Revocation of the confirmed grant was declined as serving no useful purpose, following Mary Wangari Kihika v John Gichuhi Kinuthia. The court ordered subdivision of the two parcels into five equal portions, directed that a certificate of confirmation of grant issue, and gave a right of appeal of 30 days. No express costs order was made. The judgment contains an uncorrected internal inconsistency between six and five units/ portions.

Key legal issues

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01

Mode of distribution of a polygamist's intestate estate

Holding

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

Reasoning

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.

p. 3
02

Whether the confirmed grant should be revoked on grounds of imbalanced distribution and lack of consent

Holding

Revocation was declined; rectification of the mode of distribution was the appropriate remedy

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 3.Revocation of the grant was declined as it would serve no useful purpose
  4. 4.A certificate of confirmation of grant to issue
  5. 5.Right of appeal is 30 days

Authorities

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Legislation

  • Law of Succession ActSection 40(1)
  • Law of Succession ActSection 40(2)
  • Law of Succession ActSection 3 (definition of 'house')
  • Law of Succession ActSections 35 to 38

Cases cited (6)

  • RE Estate Of Joseph Eric Owino (deceased)
    (2022)eKLR
  • Rono –v- Rono
    Civil Appeal No. 66 of 2002
  • In the Matter of Re Estate of Benson Ndirangu Mathenge (deceased)
    Nakuru HCSC No. 231 of 1998
  • In the Matter of the Estate of Nelson Kimotho Mbiti (deceased)
    HCSC No. 169 of 2000
  • Estate of Ainea Masinde Walubengo (deceased)
    (2017)eKLR
  • Mary Wangari Kihika –vs- John Gichuhi Kinuthia & 2 Others
    (2015)eKLR
Jurisdiction invoked
Law of Succession Act (Cap 160) - probate and administration of intestate estates, including Section 40 on polygamous estates

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’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.