High Court 9938 of 2019

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU SUCCESSION CAUSE NO 697 OF 2013 IN THE MATTER OF THE ESTATE OF FREDRICK M’NKANATA M’MUTUNGI (DECEASED) JULIUS KIOGORA M’NKANATA ................................PETITIONER JUDGMENT 1. Fredrick M’Nkanata M’Mutungi (“the deceased”), died on 27th March 1997. He was a polygamist and had four houses. On the 12 July, 2013 the chief of Naari location introduced the survivors of the deceased. The first house had nine children, the second house had nine children, the third house had three children and the fourth house had seven children. In this regard, the deceased had a total of thirty children. 2. On 23 December 2013, Julius Kiogora M’Nkanata petitioned for letters of administration intestate and listed L.R. NO. Kiirua/Naari/1526, L.R. NO. Kiirua/Naari/73 and plot No. 68, Isiolo as the only assets of the estate. On 19 th March, 2014 the grant of letters of administration intestate was issued to the petitioner. 3. By Summons dated 2nd June, 2016, the petitioner applied for the confirmation of grant. He proposed to distribute the estate in accordance with the houses. When the matter came up for confirmation on 31 st October, 2018, some of the beneficiaries objected to the proposed mode of distribution while the majority of the beneficiaries did not attend. In this regard, the court directed that the matter proceeds on 26 th November, 2018 when all the beneficiaries were to be present. 4. On that date, the representatives of the various houses proposed that the estate be distributed in accordance with the children instead of per houses as proposed by the petitioner. However, they did not challenge or oppose the petitioner’s proposal that he be allocated Plot No. 68, Isiolo. 5. In this regard, the court took the parties representations and the respective places where they have been occupying. It also considered the evidence on record. The only issue for determination is how the estate should be distributed. 6. Section 40 of the Law of Succession Act, Cap 160 provides that in a polygamous set up, each child of the deceased is to be considered as a unit with any surviving widow forming a separate unit. In the present case, while there are 28 children, there are 3 surviving widows. Accordingly, there are 31 units. The estate is therefore to be divided into 31 equal units. 7. I have considered that the parties were not opposed to the petitioner taking the Isiolo plot. There was no valuation report that was filed to enable the court ascertain the value of the properties. The total acreage of the remaining two properties is 27.64 acres. Since the petitioner will take the Isiolo plot, he will not be included in the distribution of the 27.64 acres. The same will be divided into 30 equal units making it 0.921 acres for each beneficiary. 8. Since the beneficiaries indicated where they have been occupying, the distribution will take that into consideration. In this regard, doing the best I can, the estate is to be distributed as follows: a) KIIRUA/NAARI/1526 Harriet Mwiti - 0.921acres Susan Kathure - 0.921 acres Joseph Miriti - 0.921 acres Martha Kajuju - 0.921 acres Harriet Karamuta - 0.921 acres

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