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|Case Number:||Succession Cause 640 of 2012|
|Parties:||In re Estate of J M M – Deceased|
|Date Delivered:||10 Mar 2016|
|Court:||High Court at Nakuru|
|Judge(s):||Anthony Ndung'u Kimani|
|Citation:||In re Estate of J M M – Deceased  eKLR|
|Case Outcome:||Application Allowed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
SUCCESSION CAUSE NO.640 OF 2012
IN THE MATTER OF THE ESTATE OF J M M – DECEASED
T N M
M W M..............................................................................................PETITIONERS
By a summons for confirmation of grant dated 31st March, 2013,T N M and M W M moved this court to have the grant of letter of administration in respect of the estate of J M M (deceased) on the 18th December, 2012 confirmed.
The summons is grounded on the affidavit of T N M and M W M sworn on the 31st March, 2014.
Annexed to the summons is a consent to confirmation of grant (General form) signed by T N M, M W M, J M M, M W M, L K M, T N W , E L L and R W M . The 1st two are the widows of the deceased while the rest are children of the deceased save for R W M who is a niece, E L L (an adopted child) and T N W a grandchild.
J W M, E S M M and E W M (all children of the deceased) did not sign the consent.
J W M and E S M M have opposed the mode of distribution proposed by the administrators of the estate and an affidavit of protest is on record. The administrators have in paragraph 5 of the affidavit in support of the summons for the confirmation of grant proposed the following distribution of shares to the beneficiaries:
i) M W M - PLOT NO.MAU SUMMIT
CENTRE L.R [particulars withheld] - - WHOLE SHARE
ii) T N W – LR [particulars withheld]
– - WHOLE SHARE
iii) J W M – LR[particulars withheld] – - WHOLE SHARE
iv M W M - LR [particulars withheld] – - WHOLE SHARE
v) E W M - LR [particulars withheld] – - WHOLE SHARE
vi) E S M M - LR [particulars withheld] – - WHOLE SHARE
vii) L K M - LR [particulars withheld] – - WHOLE SHARE
viii) T N M - LR [particulars withheld] – - WHOLE SHARE
ix) M W M - LR [particulars withheld] – - WHOLE SHARE
x) T N M and M W M - LR [particulars withheld] - EQUAL SHARES
ix) E L L - LR [particulars withheld] - WHOLE SHARE
xii) L K M -LR [particulars withheld] - WHOLE SHARE
xiii) T N M - LR[particulars withheld] - WHOLE SHARE
xiv) T N M, M W M LR [particulars withheld]
J M M - EQUAL SHARE
xv E W M - LR [particulars withheld] - WHOLE SHARE
xvi) M W M- NKU MUNICIPALITY BLK.[particulars withheld] - WHOLE SHARE
xvii) M W M and T N M - LR [particulars withheld] - EQUAL SHARES
xviii) LR[particulars withheld] -
a) M W M - 1 ACRE
b) L K M - 1 ACRE
c) T N M - ½ ACRE
d) R W M - ½ ACRE
xix) LR [particulars withheld] -
a) E WM
b) J W M
c) E S M M - EQUAL SHARE
xx) LR [particulars withheld] - R W M – WHOLE SHARE
xxi) LR [particulars withheld] - R W M - WHOLE SHARE
xxii) LR [particulars withheld] – J M M - WHOLE SHARE
xxiii) LR.[particulars withheld] -T N M - WHOLE SHARE
xxiv) PLOT [particulars withheld] - M G
TRADING CENTRE - T N M - WHOLE SHARE
xxv) KENYARE SHARES -T N M - WHOLE SHARE
xxvi) KCB SHARES - M W M - WHOLE SHARE
xxvii) UNIVEVER TEA SHARES - T N M - WHOLE SHARE
xxviii)STANDARD CHARTED SHARES – M W M – WHOLE SHARE
xxix) KENGEN SHARES - T N M - WHOLE SHARE
xxx) B.A.T. SHARES - M W M - WHOLE SHARE
xxxi)SARAFICOM SHARES - T N M - WHOLE SHARE
xxxii) MONEY IN CO-OP. BANK - M W M & T N M - EQUAL SHARE
xxxiii) MONEY IN STANDARD CHARTERED
SAFARI SAVINGS - M W M & - T N M - EQUAL SHARE
xxxiv) MONEY IN EQUITY BANK - M W M & - T N M - EQUAL SHARE
In the affidavit of protest, J W M and E S M M have in paragraph 4 thereof proposed the following mode of distribution:
- M W M - EQUAL SHARE
(b) L K M – 1 ACRE
(c) T N M – ½ ACRE
(d) R W M – ½ ACRE
(b) J W M – 1 ACRE
(c) E S M M – 1 ACRE
TRADING CENTRE – T N M - WHOLE SHARE
(ALL SHARES TO BE SOLD AND MONEY TO BE SHARES BY ALL BENEFICIARIES
In a further affidavit of protest, the two propose in paragraph 4 thereof that shares of 2 other properties be distributed as follows:
[particulars withheld] – T N M – WHOLE SHARE
[particulars withheld] – M W M – WHOLE SHARE
Counsel for the petitioners did file brief submissions.
I have had occasion to consider the summons for confirmation of grant, the supporting affidavit by the two (2) petitioners and the consent signed by some of the beneficiaries.
I have considered the affidavit of protest and the further affidavit of protest and the mode of distribution proposed thereon.
Of determination is the mode of distribution of the estate herein amongst the beneficiaries the assets and beneficiaries having been ascertained.
The Law of Succession Act (Cap 160 Laws of Kenya) and specifically under Section 27 thereof donates complete discretion to the court to order specific share of the estate to be given to each dependant or to make such other provision for him by way of periodical payments or a lump sum and to impose such conditions as it deems fit.
As held in the decision in Mary Rono V. Jane Rono & Another, Civil Appeal No.66 of 2002, the discretion aforesaid, like all discretions exercised by courts, must be made judiciously, that is to say, on sound legal and factual basis. All the while the emphasis ought to be on a fair distribution of the deceased's net estate.
The Administrators herein are the wives to the deceased and mothers to the beneficiaries. I have considered the proposal made by the administrators in respect of the distribution of the capital assets. I have also factored in the distribution proposed by J W M and E S M M. It is manifestly clear from the distribution that the administrators have endevoured to distribute the estate in so far as the capital assets are concerned equitably.
It is commendable that the two (2) wives of the deceased have come together and agreed on the distribution of the estate to their respective children without acrimony. Indeed, the majority of the beneficiaries agree with them. Of note is that the protestors have been substantially provided for as far as capital assets are concerned.
The protestors have not laid any basis for their proposed mode of distribution. Where their proposal is at variance with that of the administrators, no explanations are given to warrant interference with the distribution as proposed by the administrators. Suffice to state that distribution cannot be guided by the whimsical wishes of a minority beneficiary more so where there is evidence that they have been substantially and equably provided for.
As regards shares and cash in bank forming part of the estate herein, I am persuaded that the administrators ought to have devised a more equitable distribution. I note from the record that there is a minor beneficiary by the name T N M, a granddaughter to the deceased. She would obviously benefit appropriately by having disposable cash available to take care of her schooling needs. That alone, however does not justify having all the cash.. in bank going to the administrators. Tellingly, the amounts in the various accounts named are not indicated. No proper justification is given by the administrators why.
The protestors propose that all the shares be sold and proceeds be shared equally among all the beneficiaries. This is an equitable proposal.
Consequently, this court proceeds to confirm the grant herein on the following terms:
Dated, Signed and Delivered at Nakuru this10th day of March, 2016.
A. K. NDUNG'U