No. 467/14

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 206 OF 2010  

IN THE MATTER OF THE ESTATE OF GABRIEL KYATU MUNYALA (DECEASED)

1. PAUL NGUMBAU KYATU

2. PETER MATHEKA KYATU ………………………….....PETITIONERS

VERSUS

PETER MATHEKA KYATU………………….………...1^ST RESPONDENT

MAWIA KYATU MANYALA………………………..…2^ND RESPONDENT

MUTIWA KYATU………………………………………3^RD RESPONDENT

URBANUS WAMBUA KYATU……………..………….4^TH RESPONDENT

LUCIA MAWIA KYATU………………………………...5^TH RESPONDENT

PRISCILLA MBEKE KYATU…………..……………….6^TH RESPONDENT

NDUNGE KYATU………………………………………...7^TH RESPONDENT

MWIKALI KYATU……………………………………….8^TH RESPONDENT

MWENDE KYATU……………………………………..…9^TH RESPONDENT

JOHN MUENGE KYATU………………………………..10^TH RESPONDENT

MUENDO KYATU………………………………………11^TH RESPONDENT

JOSEPH MBINDYO………………………………..….12^TH RESPONDENT

NDOLO KYATU…………………………………………13^TH RESPONDENT

MANYALA KYATU……………………………………..14^TH RESPONDENT

PETER KIALYUVO…………………………………….15TH RESPONDENT

ANNAH NDUKU KYATU……………………………....16^TH RESPONDENT

R U L I N G

1. Gabriel Kyatu Manyala died on the 31^st May, 2009 having been domiciled in Kenya. Paul Ngumbao Kyatu and Peter Matheka Kyatu, petitioners herein petitioned for grant of Letters Administration Intestate.  It was issued on the 9^th June, 2010.  Beneficiaries of the estate disagreed on the mode of distribution of the same.
2. By way of viva voce evidence the 1^st Petitioner Paul Ngumbao Kyatu stated that the deceased was survived by two (2) wives, Lucia Mawia Kyatu Munyala and Priscilla Mbeke Kyatu.  The 1^st household consists of five (5) people while the 2^nd house consists of nine (9) people. He was of the view that the deceased’s estate be divided equally amongst all the beneficiaries as the deceased wished.
3. The 2^nd petitioner, Peter Matheka Kyatu on the other hand proposed that the land be shared according to the Akamba customary law.  He prayed for distribution of the estate equally amongst the two (2) houses, each wife would then distribute the property among her children.
4. Submissions were filed by counsel representing the estate of the deceased that I have duly considered.
5. The full inventory of assets of  the deceased at the time of his death was as follows:-

• Title No. Okia/Nzuuni/1427
• Title No. okia/Utaati/8689
• Title No. Okia/Nzuuni/4

6. The acreage was not given but the estimated value of the same was given as Kshs. 6,555,095/=.  It has been proposed that customary law be applicable in respect of distribution of the estate.  Section 2 of the Law Succession Act provides:-

1. Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estate of those persons.
2. The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.

7. The deceased died on 31^st May, 2009; therefore the applicable law is as provided in the Law of Succession Act, (Act).  As correctly submitted by counsel for the estate, Section 2 of the Act is applicable.  The only exception would be as provided by the proviso of Sections 32 and 33 of the Act, which provide thus:

                        “32).  The provisions of this part shall not apply to-

1. Agricultural land and crops thereon; or
2. Livestock,

In various districts set out in the Schedule:

West Pokot,    Wajir,           Samburu,     Lamu,

Turkana,         Garissa,       Isiolo,    Kajiado,

Marsabit,      Tana River,

Mandera,       Narok,

33.    The law applicable to the distribution on intestacy of the categories of property specified in section 32 shall be the law or custom applicable to the deceased’s community or tribe, as the case may be.”

The estate of the deceased being situated in Makueni County does not fall under the excluded area.

8. While dealing with distribution of the estate of an intestate polygamous this court must revert to Section 40(1) of the Act which provides;-

“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.”

9. The provision alluded to provides for distribution of the estate of a polygamous intestate. It stipulates that the net intestate estate shall be divided among the houses according to the number of children in each house and also adding the deceased’s wife as an additional unit to the number of the children.
10. A logical interpretation would be that such an estate ought to be divided equally amongst all the existing households taking into account the number of children of the deceased irrespective of their marital status, gender or age.
11. In the case of Saweria Wamuruona Muchanji versus Jinano Ngari [2008] eKLR the court held that:-

“This is plain unequivocal language means that the estate shall be sub-divided equally amongst the surviving children of the deceased adding the widow as a unit.  It does not say that the estate (in most cases land) should first be shared equally among the houses and then later be distributed equally among the children within each house.  I have noted this particular magistrate applied that interpretation and it is in my considered view wrong. He has misunderstood the proper meaning and purport of Section 40(1) of the Law of Succession Act.  For emphasis, I repeat that according to Section 40 (1) of the Law of Succession Act, the estate of deceased who died intestate must be distributed equally among the surviving children regardless of house which they are born.  The widow is then added as an extra unit to her house. This is the interpretation that has been applied in the High Court as well as in the Court of Appeal.  The Court of Appeal in the celebrated case of Rono versus Rono and Another [2005] 1 E.A. 363, upheld this interpretation and held that the state of a polygamous deceased person should be distributed according to the number of the children and not the number of houses”.

12. From the foregoing it is apparent that the estate of the deceased cannot be divided in accordance with the customary law.  Justice demands that it be divided in accordance with statutory law.  The estate of the deceased will therefore be divided equally amongst the number of children in each household taking into account the widows as additional units.
13. Parties are therefore directed to agree on the distribution pursuant to the order of this court.
14. This being a family matter parties will bear their own costs.

DATED, SIGNED and DELIVERED at MACHAKOS this 18^TH day of DECEMBER, 2014.

L.N. MUTENDE

JUDGE