Court grants equal shares to siblings in inheritance dispute

Monday November 11 2019

Sections 35 of Law of Succession Act provides that where a person is survived by adult children but no spouse, the estate shall devolve upon them in equal shares. PHOTO | FILE | NATION MEDIA GROUP


Taking care of a parent in old age does not give one added advantage to inheritance, the High Court has ruled in a property row involving eight siblings.

Justice Florence Muchemi held that the Law of Succession Act mandates equal distribution of the estate of the deceased without discrimination, mostly where there is absence of a valid will.

She was ruling in a case where a woman wanted her husband to get a stake of her deceased father’s estate because he had taken care of him at old age.

Ms Jerusha Wambui claimed that her husband, Mr Moses Mbogo, took care of the deceased, Kubuta Kamara, by giving him a goat for soup.

Kamara died in 2001 at Mwea Hospital. The eight children had already shared out the estate of the deceased save for a plot in Wang’uru Mwea, which was the subject of the dispute.



When the succession proceedings began, the plot was left out of the list of the deceased’s assets.

Ms Wambui, who was the administrator of the estate, testified that she was advised to leave it out when commencing the probate proceedings by her advocate.

But Justice Muchemi found the move deliberate with an intention to later sneak it in so that the benefit may go to Ms Wambui and her husband in exclusion of all other beneficiaries.

“This is confirmed by the fact that Ms Wambui did not serve the application on her siblings even after the court so directed on May 6, 2019. On May 28, 2019, she came to court alone just for the court to remind her again to serve the application,” said the judge.

Ms Wambui filed the matter seeking to have the disputed plot registered in Mr Mbogo’s name.


In her testimony, she said the deceased had bequeathed the plot to his son-in-law Mbogo as a gift prior to his death.

The judge noted that if the deceased wanted to give the plot to Ms Wambui’s husband, he would have done so during his lifetime.

Ms Wambui claimed her husband paid the cost of subdivision of the deceased’s land, LR. Ngariama/Lower Ngariama/10, and was to be compensated with the plot.

The judge ruled that her explanation was not convincing, adding that all the debts, if any, ought to have been sorted out during the lifetime of the deceased.

Ms Wambui’s argued that the plot was given to her husband by the deceased during his lifetime and that he had developed it extensively over 22 years.

The other seven children were opposed to Ms Wambui’s application, arguing that she had purposively left out the suit property from the list of their father's estate.

They added that the deceased never allocated the plot to anyone at the time of his death.


Further, the respondents denied the existence of any agreement between the beneficiaries that the suit property devolves to Ms Wambui’s husband.

In their submissions, they said that the suit property should devolve in equal shares to all the beneficiaries.

The issue of Ms Wambui having developed the plot was disputed by the respondents, who said that it was only recently that Mr Mbogo started developing the plot but they stopped him.

At the time, the proposed beneficiary had only built a foundation for two rooms, contrary to what Ms Wambui told the court that her husband had constructed three shops and four rooms.

In addition, Ms Wambui fenced off the plot using iron sheets only two days before the hearing of her application in court.


Justice Muchemi allowed inclusion of the property in the list of the deceased’s estate but blocked attempts to have it registered in the name of Ms Wambui’s husband.

“The husband of the applicant is not a beneficiary of the estate as defined by Section 40 of the Law of Succession Act.”

“The deceased died intestate in this case and distribution of his estate should be guided by the law on intestacy. I reach a conclusion that the plot should be shared equally by all the beneficiaries of the deceased as provided by the law.”

While finding no merit in Ms Wambui’s application, save for the inclusion of the plot in the grant, the court directed for amendment of the grant certificate of the estate so as to include the disputed piece of land.

Sections 35 of Law of Succession Act provides that where a person is survived by adult children but no spouse, the estate shall devolve upon them in equal shares.