REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 485 OF 2010
IN THE MATTER OF THE ESTATE OF E S A – DECEASED
AND
N N ………………….……………….…. 1ST PETITIONER
F J A ……………….…................……… 2ND PETITIONER
R U L I N G
This matter relates to a contested summons for confirmation of grant. The confirmed grant was challenged for not including land parcel No. [particulars withheld] as well as another piece of land at [particulars withheld].
In the confirmed grant, whose certificate was issued on 2nd December 2010, only the account at Kenya Commercial Bank Ltd. Kakamega Branch was disclosed.
In an affidavit filed by both petitioners, it has been disclosed that there were two land assets [particulars withheld] and [particulars withheld] belonging to the deceased.
The 1st petitioner proposed distribution of the said land as follows –
- [particulars withheld] be shared among the three children of the deceased equally.
- [particulars withheld] measuring 2.1 acres T S to get 0.9 acres, E M 0.6 acres, and S N S to get 0.6 acres.
The 2nd petitioner on the other hand proposes that distribution of the land be as follows –
- [particulars withheld] to go to the 1st petitioner and her children.
- [particulars withheld] to the 2nd petitioner and her child.
Reasons for the two proposed modes of distribution were given in the affidavits of both petitioners as well as in the further affidavit which was later filed by F J A the 2nd petitioner.
Section 40 of the Law of Succession Act (Cap.160) envisages as far as possible, equal distribution of the estate of a deceased person among living spouses and children. In my view therefore, the mode of distribution proposed by the 1st petition namely N N is more in line with the spirit of the law, as the value of the respective parcels of land was not disclosed.
Though S S is still a minor, I see no justification to grant her a more favourable treatment. If the house on [particulars withheld] is rented, she should get her equal share of the income with the others therefrom. I am also not convinced that T S should get a larger portion of land in [particulars withheld]. I see no justifiable reason why he should be treated more favourably.
Consequently, I order that the two land assets above be distributed equally among the three children. The two widows (administrators) will have a life interest in the land. An amended confirmed grant be issued.
Dated, singed and Delivered at Kakamega this 28th day of November, 2013
George Dulu
J U D G E