REPUBLIC OF KENYA

IN THE HOGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 158 OF 2000

IN THE MATTER OF THE ESTATE OF JOHNSON MWITI M’IKANDI (DECEASED)

GEORGE MURITHI MWITI…………………PETITIONER

R U L I N G

1. Before me is a Summons for the rectification of the grant issued to Teresa Kamathi and which was confirmed on 1^st March, 2010. The application is supported by the affidavit of George Murithi Mwiti sworn on 17^th October, 2018.

2. The applicant stated that the grant was issued to the said Teresia Kamathi but she has since passed on. That the deceased was survived by Joshua Kaimenyi Mwiti (son – deceased), Jane Kagwiria Mwiti (daughter) and Evangeline Karimi Mwiti (deceased). George Murithi Mwiti (“the applicant”) sought that the entire estate be distributed to him in the proposed rectification.

3. When the matter came up for hearing on 17^th December, 2018, the applicant told the court that the original petitioner Teresia Kamathi died in 2003 before effecting the distribution; that his brother Joshua Kaimenyi Mwiti had also died after confirmation and had left behind a widow, Eunice Kananu with a daughter Elosy Karambu. He also indicated that the distribution had left out Nyaki/Mulathankari/481 and he sought to have it included in the rectification.

4. I have considered the application and the representations made by the applicant. It is clear from death certificate B No.731080 dated 26^th June, 2003, that the original petitioner passed away on 25^th June, 2003. That Joshua Kaimenyi Mwiti also died on 27^th May, 2006 in terms of the death certificate No. 152846 dated 6^th August, 2018.

5. The record also shows that Evangeline Karimi Mwiti died on 15^th June, 2011 vide death certificate no. 154871 dated 29^th March, 2012.

6. In this regard, out of the five people who had survived the deceased in this matter as stated in the Chief’s letter of introduction dated 23^rd May, 2000, only the applicant was still alive. The applicant however, indicated that Joshua Kaimenyi Mwiti was survived by a widow by the name Eunice Kananu and she could take his share.

7. In view of the foregoing, I find the application to be meritorious. I substitute the administrator with the applicant George Murithi Mwiti. As regards distribution of the estate, the aforesaid Eunice Kananu is entitled to the share of her deceased husband. The applicant has no right to inherit his brother’s share.

8. The other issue is the applicant’s inclusion of parcel no. Nyaki/Mulathankari/481 as part of the deceased’s estate. According to the certificate of search dated 18^th December, 2018, the said property is registered in the name of Peter Ikandi Twankure and not the deceased. Accordingly, that property is not part of the estate and is therefore not available for distribution.

9. Accordingly, the application is hereby allowed. The certificate of confirmation of grant is therefore rectified as follows:-

a) the grant issued to Teresa Kamathi Mwiti is hereby revoked.

b) a fresh grant hereby issues to George Murithi Mwiti.

c) The certificate of confirmation issued on 6^th March, 2002 is hereby rectified as follows: -

 Nyaki/Giaki/386

 i) Eunice Kananu Mukumu   - 10 acres

 ii) George Murithi Mwiti    - Balance

10. There will be no order as to costs.

DATED and DELIVERED at Meru this 5^th day of March, 2019.

A. MABEYA

JUDGE