High Court 6384 of 2016

v) E W M - LR [particulars withheld] – - WHOLE SHARE vi) E S M M - LR [particulars withheld] – - WHOLE SHARE vii) L K M - LR [particulars withheld] – - WHOLE SHARE viii) T N M - LR [particulars withheld] – - WHOLE SHARE ix) M W M - LR [particulars withheld] – - WHOLE SHARE x) T N M and M W M - LR [particulars withheld] - EQUAL SHARES ix) E L L - LR [particulars withheld] - WHOLE SHARE xii) L K M -LR [particulars withheld] - WHOLE SHARE xiii) T N M - LR[particulars withheld] - WHOLE SHARE xiv) T N M, M W M LR [particulars withheld] JMM - EQUAL SHARE xv E W M - LR [particulars withheld] xvi) M SHARE W M- xvii) M W M and - WHOLE SHARE NKU MUNICIPALITY TNM - LR [particulars withheld] - xviii) LR[particulars withheld] a) M W M - 1 ACRE b) L K M - 1 ACRE c) T N M - ½ ACRE d) R W M - ½ ACRE xix) LR [particulars withheld] BLK.[particulars - - a) E WM b) J W M c) E S M M - EQUAL SHARE xx) LR [particulars withheld] - R W M – WHOLE SHARE xxi) LR [particulars withheld] - R W M - WHOLE SHARE xxii) LR [particulars withheld] – J M M - WHOLE SHARE xxiii) LR.[particulars withheld] -T N M - WHOLE SHARE xxiv) PLOT [particulars withheld] - M G withheld] EQUAL SHARES - WHOLE

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TRADING CENTRE - T N M - WHOLE SHARE xxv) KENYARE SHARES -T N M xxvi) KCB SHARES - M W M - WHOLE SHARE - WHOLE SHARE xxvii) UNIVEVER TEA SHARES - T N M - WHOLE SHARE xxviii)STANDARD CHARTED SHARES – M W M – WHOLE SHARE xxix) KENGEN SHARES - T N M - WHOLE SHARE xxx) B.A.T. SHARES - M W M - WHOLE SHARE xxxi)SARAFICOM SHARES -TNM - WHOLE SHARE xxxii) MONEY IN CO-OP. BANK - M W M & T N M - EQUAL SHARE xxxiii) MONEY IN STANDARD CHARTERED SAFARI SAVINGS - MWM& -TNM xxxiv) MONEY IN EQUITY BANK - EQUAL SHARE -MWM&-TNM - EQUAL SHARE In the affidavit of protest, J W M and E S M M have in paragraph 4 thereof proposed the following mode of distribution: 1. PLOT NO.MAU SUMMIT CENTRE LR/[particulars withheld] 2. KIAMBOGO/KIAMBOGO BLK [particulars withheld] MW M - WHOLE SHARE -T N M and - M W M - EQUAL SHARE 3. LR BLK [particulars withheld] (MWARIKI) – J W M – WHOLE SHARE 4. LR [particulars withheld] ,( MWARIKI ) - M W M – WHOLE SHARE 5. LR [particulars withheld] (MWARIKI) - E W M M – WHOLE SHARE 6. LR BLK[particulars withheld] (MWARIKI) – E W M – WHOLE SHARE 7. LR[particulars withheld] (MWARIKI) – L K M – WHOLE SHARE 8. LR [particulars withheld] (MWARIKI) –T N M – WHOLE SHARE 9. LR [particulars withheld] (MWARIKI) – J M M – WHOLE SHARE 10.LR [particulars withheld] (MWARIKI) (SOLD) ADMINISTRATORS TO TRANSFER (T N M AND M W M) 11.LR [particulars withheld] (HARAKA) - E L L – WHOLE SHARE 12.LR [particulars withheld] L K M– WHOLE SHARE 13.LR[particulars withheld] (MWARIKI) – T N M - WHOLE SHARE 14.LR [particulars withheld] (HARAKA) - T N M, M W M AND J M M – EQUAL SHARE 15.LR[particulars withheld] (HARAKA) - E S M M - WHOLE SHARE 16.NKU MUNICIPALITY BLK.[particulars withheld] – E S M M and M W M - (TO HOLD IN TRUST OF THE ESTATE) (REVENUE COLLECTED BE SHARED BY ALL BENEFICIARIES) 17.LR [particulars withheld] (HARAKA) - J M M – WHOLE SHARE 18.LR [particulars withheld] (HARAKA) - E S M M – WHOLE SHARE 19.LR [particulars withheld] (HARAKA) - J W M – WHOLE SHARE 20.LR [particulars withheld] (HARAKA) 21.(a) M W M – 1 ACRE

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(b) L K M – 1 ACRE (c) T N M – ½ ACRE (d) R W M – ½ ACRE 22.LR [particulars withheld] (HARAKA) -(a) E W M – 1 ACRE (b) J W M – 1 ACRE (c) E S M M – 1 ACRE 23.LR [particulars withheld] (HARAKA) - R W M – WHOLE SHARE 24.LR [particulars withheld] – M W M – WHOLE SHARE 25.LR [particulars withheld] (MWARIKI) – J M M – WHOLE SHARE 26.NKU MUNICIPALITY [particulars withheld] – T N M and J W M - (TO HOLD IN TRUST OF THE ESTATE) (REVENUE COLLECTED BE SHARED BY ALL BENEFICIARIES) 27.[particulars withheld] -MBURU GICHUA TRADING CENTRE – T N M - WHOLE SHARE 28.KENYA RE SHARES 29.KCB SHARES 30.UNIVEVER TEA SHARES 31.STANDARD CHARTED BANK SHARES 32.KENGEN SHARES 33.B.A.T. SHARES 34.SARAFICOM SHARES (ALL SHARES TO BE SOLD AND MONEY TO BE SHARES BY ALL BENEFICIARIES 35.MONEY IN CO-OP. BANK – TO BE SHARED EQUALLY BY ALL THE BENEFICIARIES 36.MONEY IN STANDARD CHARTERED BANK – TO BE SHARED EQUALLY BY ALL THE BENEFICIARIES 37.MONEY IN EQUITY BANK – TO BE SHARED EQUALLY BY ALL THE BENEFICIARIES In a further affidavit of protest, the two propose in paragraph 4 thereof that shares of 2 other properties be distributed as follows: [particulars withheld] – T N M – WHOLE SHARE [particulars withheld] – M W M – WHOLE SHARE Counsel for the petitioners did file brief submissions. I have had occasion to consider the summons for confirmation of grant, the supporting affidavit by the two (2) petitioners and the consent signed by some of the beneficiaries. I have considered the affidavit of protest and the further affidavit of protest and the mode of distribution proposed thereon. Of determination is the mode of distribution of the estate herein amongst the beneficiaries the assets and beneficiaries having been ascertained. The Law of Succession Act (Cap 160 Laws of Kenya) and specifically under Section 27 thereof donates complete discretion to the court to order specific share of the estate to be given to each dependant or to

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make such other provision for him by way of periodical payments or a lump sum and to impose such conditions as it deems fit. As held in the decision in Mary Rono V. Jane Rono & Another, Civil Appeal No.66 of 2002, the discretion aforesaid, like all discretions exercised by courts, must be made judiciously, that is to say, on sound legal and factual basis. All the while the emphasis ought to be on a fair distribution of the deceased's net estate. The Administrators herein are the wives to the deceased and mothers to the beneficiaries. I have considered the proposal made by the administrators in respect of the distribution of the capital assets. I have also factored in the distribution proposed by J W M and E S M M. It is manifestly clear from the distribution that the administrators have endevoured to distribute the estate in so far as the capital assets are concerned equitably. It is commendable that the two (2) wives of the deceased have come together and agreed on the distribution of the estate to their respective children without acrimony. Indeed, the majority of the beneficiaries agree with them. Of note is that the protestors have been substantially provided for as far as capital assets are concerned. The protestors have not laid any basis for their proposed mode of distribution. Where their proposal is at variance with that of the administrators, no explanations are given to warrant interference with the distribution as proposed by the administrators. Suffice to state that distribution cannot be guided by the whimsical wishes of a minority beneficiary more so where there is evidence that they have been substantially and equably provided for. As regards shares and cash in bank forming part of the estate herein, I am persuaded that the administrators ought to have devised a more equitable distribution. I note from the record that there is a minor beneficiary by the name T N M, a granddaughter to the deceased. She would obviously benefit appropriately by having disposable cash available to take care of her schooling needs. That alone, however does not justify having all the cash.. in bank going to the administrators. Tellingly, the amounts in the various accounts named are not indicated. No proper justification is given by the administrators why. The protestors propose that all the shares be sold and proceeds be shared equally among all the beneficiaries. This is an equitable proposal. Consequently, this court proceeds to confirm the grant herein on the following terms: 1. That all capital assets be distributed as proposed by the administrators in paragraph 5 of the affidavit in support of summons for confirmation of grant sworn by T N M and M W M on 31st March, 2014. 2. That all shares as listed in the affidavit aforesaid be sold and proceeds be distributed to all beneficiaries equally. For the purposes of the interests of T N M, she will be considered a unit for the purposes of distribution of the proceeds from the share with her share going to T N M to hold in trust. 3. That all cash in bank be ascertained and same to be distributed as hereunder: i. 40% for the benefit of T N W to be held in trust by T N M ii. 40% to the 2 widows equally iii. 20% to all other beneficiaries equally. Orders accordingly. Dated, Signed and Delivered at Nakuru this10th day of March, 2016. A. K. NDUNG'U

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JUDGE

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