In re Estate of the late Ndethiu M'Ikiara (Starlings Mburugu Ndethiu v Faith Ndumba & another)

REPUBLIC OF KENYA IN THE HIGH COURT KENYA AT MERU SUCCESSION CAUSE NO 16 OF 2011 IN THE MATTER OF THE ESTATE OF M’NDETHIU MUBEA.....DECEASED STARLINGS MBURUGU NDETHIU...................................................APPLICANT ERASTUS KIAMBATI ........................................................................PETITIONER VERSUS FAITH NDUMBA...................................1ST ADMINISTRATRIX/RESPONDENT MARION GAKII.....................................2ND ADMINISTRATOR RESPONDENT RULING 1. The distribution of the estate of the deceased herein who died on 6 th April 2004 was done vide a ruling delivered on 22 nd of November 2018. This followed hearing of a protest by viva voce evidence after the Petitioner Erastus Kiambati failed to respond to the said protest and after he also failed to appear in court and testify as to his proposed mode of distribution of the estate. 2. When the ruling was delivered Starling Mburugu Ndethiu by an application dated 14 th January 2019 sought that the grant that was confirmed to Faith Ndumba and Marion Gakii on 22 nd November 2018 be revoked for the reasons that during the hearing of the protest, none of his siblings from the 1 st house were served to attend and that the current Administratrixes had left out Lydia Nguta a daughter to his late sister and provided for Jackline Karimi whose late mother was not the biological daughter of the deceased. The Applicant also claimed the Petitioner Erastus Kiambati was the son to the deceased’s late brother and that he was entitled to a share of the estate because it is the deceased who brought him up. 3. The application dated 14 th of January 2019 was opposed by Faith Ndumba in her replying affidavit sworn on 10 th July 2019.She averred that the Applicant and his siblings as well as the Petitioner were always aware of the hearing date and that there was evidence that they were served to attend court but failed to do so. It was her view that the court made a fair distribution to all the dependants of the deceased. 4. Lydia Nguta Ndethiu and Erastus Kiambati swore affidavits in support of the applications by Starlings Mburugu claiming that the deceased had in 1976 identified portions of LR No.Kibirichia/735 to his children and that his wishes should be honoured. Erastus Kiambati confirmed that he had been served with an affidavit of protest but he didn’t know what was expected of him and when he came to court on the date of ruling he found he had been excluded as a beneficiary, that when he approached his current advocates to appeal on his behalf, he was advised to withdraw the notice of appeal as he had no grounds of appeal as he had not responded to the protest, neither did he testify. 5. In Starlings Mburugu’s supplementary affidavit sworn on 20 th August 2019, he averred that the family had entrusted Erastus Kiambati with the responsibility of petitioning for letters of administration to the estate of the deceased but the said Petitioner did not inform him of the progress of the cause and he only learnt about the date of the ruling. He confirmed that on two occasions the Assistant Chief served his two sisters Margret Mwari and Gladys Ntimi and his brother Benson Murugu with court papers but they never contacted him as he stays and works in Nairobi. 6. Starlings Mburugu’s application dated 14 th January 2019 was heard by way of viva voce evidence and from the testimonies of the rival parties, it comes out clearly that the parties have joined issues to the fact that prior to the deceased’s death he had identified certain portions of LR No.Kibirichia/735 to his children and the surviving widow as well as the Petitioner, save that when the Petitioner filed this cause he identified himself as the son of the deceased rather than the nephew which fact was not true. 7. When Erastus Kiambati made a proposal for distribution of the estate of the deceased he did not get consent from the beneficiaries and

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