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|Case Number:||Civil Appeal 61 of 2006|
|Parties:||PHILIS MICHERE MUCEMBI v WAMAI MUCHEMBI|
|Date Delivered:||08 Dec 2010|
|Court:||High Court at Embu|
|Citation:||PHILIS MICHERE MUCEMBI v WAMAI MUCHEMBI  eKLR|
|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|
IN THE HIGH COURT OF KENYA
J U D G M E N T
In his judgment, the magistrate ordered that the land belonging to the deceased be distributed in accordance with Section 40 of the law of Succession Act Cap 160 of the Laws of Kenya. The Appellant had proposed that the same be distributed equally between the 2 houses in accordance with Kikuyu customary law. Being dissatisfied with the said judgment, the Appellant filed this Appeal. She has raised 5 grounds of Appeal in her amended memorandum of Appeal amended on 2.07.2010. The gravaman of the said grounds is that the learned trial magistrate failed to appreciate that the estate of the deceased was subject to Kikuyu customary law and he had died before the commencement of the law of Succession Act. The learned trial magistrate is therefore said to have erred in law in applying Section 40 of the Law of Succession Act instead of Kikuyu customary law as required by Section 2(2) of the law of Succession Act. There is also a ground (ground 3) to the effect that the learned trial magistrate erred in disregarding the wishes of the deceased to have the land sub-divided equally between the 2 houses. Evidence was adduced before the trial court with the Respondent herein in her very brief testimony saying that the land should be distributed equally among the children of the deceased. Her evidence on cross examination was very short and I will quote it for ease of reference
The petitioner/Appellant and her witness one Elias Muchiri Njagi testified to the effect that the land should be shared equally between the houses.
“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 estate shall commence or proceed so far as possible in accordance with this Act.”
On this point, I am persuaded by the decision of my late brother KAMAU Ag. J in HCC Succession Cause No. 935 of 2003.
In my considered view, the administration of an estate as envisaged under Section 2(2) does not include distribution of the estate. It only entails the management of the same. If the converse was correct, then the provision would not have differentiated between persons dying before the commencement of the Succession act and those dying later. It would simply have stated that the law of succession Act was to apply to all estates of deceased persons which had not been distributed as at the date of the law of succession Act was operationalized. Subjecting the estate of those who died prior to 1.07.1981 to customary law was not a superfluous provision. It was meant to apply in the distribution of the estate but the management of the estate was to comply with the new law.
Each party will bear its own costs. It is so ordered.
In presence of:- Ms. Kahara for Mr. Magee for Appellant.