1.The initial judgment in this matter was written and delivered by Justice Chitembwe on the September 24, 2019. He is now unable to proceed with the case due to circumstances known to the parties. I am in the premises compelled to proceed with the matter.
2.In his judgment, Justice Chitembwe made a finding that the deceased in this case died intestate and was survived by the petitioner and her three children and the 1st objector and her two children. The learned judge accordingly ruled that the seven of them would benefit from the deceased`s estate. The judge ordered a fresh grant to issue to the petitioner and the 1st objector. The judge further made the following orders so as to guide the court in the distribution of the estate:1.Valuation of the following properties -a.Plot number XXXX/174, Marsabit townb.Plot number XXX, Marsabit town2.Ascertainment of pension and gratuity of the deceased.(3)Ascertainment of the amount of money in the deceased`s bank accounts and in Afya Sacco account.
3.Parties were given 45 days in which to conduct and file the valuation reports. It was further ordered that in case they were unable to agree to conduct a joint valuation the parties were at liberty to file separate valuation reports.
4.Subsequently, the 1st objector complied with the above orders but the petitioner did not file anything. The 1st objector in addition filed summons for confirmation of grant dated January 27, 2020 seeking that the estate of the deceased be distributed as follows:1.Plot No XXXX/75 Marsabit to be sold and proceeds shared equally among the beneficiaries.2.Plot No 213 Marsabit to be sold and proceeds shared equally among all the beneficiaries.3.Kenya Commercial Bank Account No XXXX balance of Ksh 235,687/= to be shared equally among all the beneficiaries.4.Share of plot No Marsabit/Mountain/40 to be sold and proceeds shared equally among all the beneficiaries.5.(A) Gratuity lump sum of Ksh 2,143,416/= to be shared equally among all the beneficiaries.(B) Monthly Pension to be shared equally between GGWN and FGJ.6.Afya Sacco shares Ksh 706,694/= to be shared equally among all the beneficiaries.
5.The 1st objector`s valuation report on title number XXXXX, Marsabit Town that was prepared by [particulars withheld] Property Services and dated February 13, 2020 was as follows:Land 0.XXX ha (0.XXXX) acres Ksh15,000,000/=Developments commercial building Ksh 10,000,000/=Total Ksh 25,000,000/=
6.The 1st objector filed another report over the same property prepared by [particulars withheld] Property Ltd, registered valuers, that did the market value of the land alone excluding the improvements thereon and returned a value of Ksh 10,000,000/=.
7.The 1st objector`s valuation report on Plot No, [particulars withheld] village, Marsabit Town was prepared by [particulars withhel] Property Ltd who valued the land, excluding improvements thereon, at Ksh 1,500,000/=.
8.The 1st objector filed an affidavit of inventory of the money as follows: Kenya Commercial Bank, account no XXXX,Marsabit Branch……………………..credit balance Ksh 235,687/=Afya Sacco due…………………………………..Ksh 2,143,416/=Monthly pension Ksh 50,000/=
9.The deceased herein was polygamous. The estate of a polygamous deceased is supposed to be distributed in accordance with section 40 of the Law of Succession Act that provides 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 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.
10.The deceased had two wives - the petitioner and the 1st objector. The petitioner has 3 children thereby making 4 units in that house while the 1st objector has 2 children making 3 units in that house.
11.The petitioner did not oppose the summons for confirmation of grant dated January 27, 2020. Due to the animosity between the two houses, it is not possible to distribute the real estate assets of the estate in any other manner other than having them sold and proceeds thereof distributed amongst the beneficiaries. I find the mode of distribution of the estate as proposed by the 1st objector to be reasonable. As it is money that will be shared after the assets are sold, I am of the view that it should be shared equally amongst the 7 beneficiaries. In doing so each house will end up getting money proportionate to the number of units in the house.
12.As regards the monthly pension, I order that it be shared equally amongst the two widows.
13.The valuation report from [XXXX] Property Services made a market value of Ksh 15,000,000/- of the land on plot No XXX/174 Marsabit town while the development on the plot was valued at Ksh 10,000,000/=. The report from XXX Property Ltd valued the same land at Ksh 10,000,000/=. In view of the variation in the two reports on the value of the land I will adopt the lower figure as the estimated value of the land on the said plot. I accordingly order that the property together with the developments thereon be sold at a reserve price of Ksh 20,000,000/=.
14.The value of the developments on plot No XXX, Marsabit town was not done. This is because Justice Chitembwe only ordered valuation on the two parcels of land excluding the developments thereon. In my view it is not possible to sell the land and exclude the developments thereon. I therefore order that parties file valuation reports on the developments on plot No XXX, Marsabit Town, so that the court can issue orders on the reserve price of the said property and make final orders on the confirmation of grant.
15.Matter to be mentioned on December 5, 2022.