Agnes Wanjiru Kamiri v Moses Ngomo Thuku

5. The application is based on the grounds that six (6) months have since lapsed from the date the grant of representation was made, and no objections has been against the confirmation of the grant nor any pending application for provision for dependents. 6. The application was further supported by the affidavit of the applicant sworn on the 29th July 2024, where she proposed the deceased properties be distributed as follows: a. LR No(s). Nyandarua/Malewa/636, 2047, 2048, and 2049 be shared in the ratio of 50%:50% between the two houses. b. L.R No. 1510-14649/Riruta/S160 and Miharati Market Kiosk be given to the second house wholly (100%). c. Plot No, 26B Ting’ang’a, Kiambu be given to the first house wholly (100%). 7. The applicant further averred that the deceased and her mother, Mary Benigna Wangari Kamiri, married in the August 1962 and acquired parcel of land Nyandarua/Malewa/635 measuring 68 acres. That they also purchased plots in Nairobi Satellite area, Ting’ang’a 8. However, the deceased and her mother his disagreed and she returned to her parents. Consequently, the deceased settled down with the 2nd widow. 9. That in early 2006, she was notified by the deceased’s neighbours that he was ailing and that, she, her mother and other members of their extended family made frequent trips to see the deceased, who was admitted in hospital. However, his health deteriorated and was transferred to Kenyatta National Hospital for specialised treatment but passed away a week later. 10. The applicant avers that she tried to initiate succession proceedings but the 2nd house was reluctant stating that it was too soon. Eventually, in the year 2010. both houses had a family meeting in the presence of the local administration officers where it came to light that before his demise, the deceased gifted the objector and Bernard Mwaura twelve (12) acres each out parcel No. Nyandarua/ Malewa/635, leaving forty-four (44) acres. That it was agreed that the remaining forty-four (44) acres be divided equally among the two widows. 11. The petitioner avers that she paid survey fees on the agreement that the 2nd house would refund the money, which they are yet to. But the sub-division was done giving rise to parcel No(s). Nyandarua/ Malewa/2050 and 2051 allotted to the objector and Bernard, and Nyandarua/Malewa/636, 2047, 2048, and 2049 which are to be shared equally among the two houses. Further a barbed wire fence was erected to demarcate the shares belonging to both houses. 12. The applicant avers that the 1st house is seeking an equal share with the 2nd house. That the twentyfour (24) acres allocated to the objector and his brother Bernard were allocated during the illness of the deceased and should therefore be considered as part of his estate and allocated equally between the two houses. 13. That in the alternative, that the objector and Bernard having been allocated twelve (12) acres each, be left out in the distribution of the remainder of the initially land comprising of Nyandarua/Malewa/635 as it would not be equitable and/or rational to have them share in the remaining land 14. Furthermore, that the 1st house have already substantially developed their mother’s portion in LR. No(s). Nyandarua/Malewa/636, 2047, 2048, and 2049 and even donated part of it to a church. 15. That in addition, the 1st house is willing to relinquish its entitlement to an equal share in L.R No. 1510-14649/Riruta/S160 which is prime property in terms of value and where the children of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19344/eng@2025-11-19 2

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2nd house live, and Miharati Market Kiosk as the widow from the 1st house has never utilized and/or benefited from it. 16. However, the objector filed an affidavit of protest sworn on 27th February 2025, on his own behalf and on behalf of his siblings. He averred that he was opposed to the mode of distribution proposed by the applicant cum co-administrator terming it as unfair to the 2nd house arguing that the law provides for distribution per unit. He further denied attending any meeting before the area chief where the mode of distribution was agreed on. 17. The objector averred that while the 2nd house recognizes the 1st house are the deceased’s dependents and should inherit, but the 1st house abandoned the deceased a long time ago and only returned when they learnt of his illness creating the impression that they returned for the sole purpose of acquiring a share of the deceased’s estate. 18. The objector averred that the twelve (12) acres in his name and the name of his brother Bernard do not form part of the estate as it was acquired through a well-known arrangement between them and the deceased after they assisted the deceased to pay off his debt and therefore the applicant cannot lay claim to them. Furthermore, the fact that they acquired the land from the deceased does not disqualify them from inheriting his estate. 19. The objector proposed that the deceased estate be distributed as follows: - 20. 21. a. LR No(s). Nyandarua/Malewa/636, 2047, 2048, and 2049 be shared at equally among all the beneficiaries. b. L.R No. 1510-14649/Riruta/S160 and Miharati Market Kiosk be given to Mary Wanjiku Thuku (the deceased’s widow from the 2nd house). c. Plot No, 26B Ting’ang’a, Kiambu be given to Mary Benigna (the deceased’s widow from the 1st house). Having considered the rival arguments herein, I note that the deceased died intestate and left beneficiaries in two houses. The law under section 40 of the Law of Succession Act, states that: (1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children. (2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38. In addition, section 42 of the Act states that: Where— (a) an intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house; or (b) property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35, that property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19344/eng@2025-11-19 3

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22. In the instant matter the bone of contestation is the distribution of the LR No(s), Nyandarua/ Malewa/636, 2047, 2048, and 2049. It is also an issue whether the land given to the objector and the brother should be included in the property of the estate for distribution. 23. In this matter land already bequeathed amount to gift inter vivos. Such a gift is a valid gift of property made during the donor's lifetime with immediate and irrevocable effect. To be legally valid, the gift must be completed by the donor's intent, delivery of the property, and acceptance by the donee. The transfer can be made via a deed, a written instrument, or a declaration of trust. In addition, the gifts of land must be transferred by registered deed, and gifts of personal property are often completed through delivery. Furthermore, both the donor and donee must be living at the time the gift is made. 24. It is noteworthy that a completed gift inter vivos is not considered part of the deceased's estate. However, the value of an inter vivos gift may be taken into account when distributing the net intestate estate. This is known as "bringing the property to hotchpot," where the value of the gift is considered to ensure fairness among beneficiaries. 25. The aforesaid is supported by the provisions of section 42 of the Act, whose purpose is to ensure that the total property received is considered when distributing the remaining estate, ensuring fairness among beneficiaries. Thus the value of these previous benefits is deducted from the recipient's share of the net intestate estate to determine the final amount they are entitled to. 26. Consequently, the land to the objector and the brother having been effectively transferred to them it cannot form part of the estate, 27. However, it must be considered while distributing the rest of the property of the estate. As it is already large in proportion of what the other beneficiaries will receive, the objector and the brother will not benefit from the rest of the property. 28. Pursuant to the aforesaid, the remaining property of 44 acres will be distributed equally among the remaining beneficiaries including the widows in equal shares giving rise to a portion of 4 acres for each. The other property will be distributed as agreed among the parties. The costs of this application be in the cause. 29. It is so ordered. DATED, DELIVERED AND SIGNED ON THIS 19TH DAY OF NOVEMBER, 2025 GRACE L. NZIOKA JUDGE In the presence of: Ms. Ngonde for the petitioner The objector present physically Ms. Hannah: court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19344/eng@2025-11-19 4

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