Case ID:160603

In re Estate of Henry M’Bagine M’Ithika (Deceased) [2020] eKLR

Case Metadata

Case Number:

Succession Cause 294 of 2012

Parties:

In re Estate of Henry M’Bagine M’Ithika (Deceased)

Date Delivered:

25 Jun 2020

Case Class:

Civil

Court:

High Court at Meru

Case Action:

Ruling

Judge(s):

Alfred Mabeya

Citation:

In re Estate of Henry M’Bagine M’Ithika (Deceased) [2020] eKLR

Court Division:

Family

County:

Meru

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 AT MERU

SUCCESSION CAUSE NO. 294 OF 2012

IN THE MATTER OF THE ESTATE OF HENRY

M’BAGINE M’ITHIKA alias BAGINE NTAKA (DECEASED)

SUSAN NKATHA....................CO- ADMINISTRATIX/APPLICANT

CHARLES MUTUA........................................CO-ADMINISTRATOR

-VS-

JUSTUS GITUMA.........1

ST

PROTESTOR/CO-ADMINISTRATOR

BARTHOLOMEW M. MBOGORI.......................2

ND

PROTESTOR

JAMES MWICHUIRI............................................3

RD

PROTESTOR

R U L I N G

1. In its Judgment delivered on 23/5/2019, this Court directed,

inter alia,

that: -

a) the property

L.R. No. Ntima/Igoki/537

be distributed in accordance with the way the parties occupy the same on the ground that is; the family of

M’Mbogori M’Bagine, Francis Murithi, Charles Mutua

and

Susan Nkatha;

b) the Meru District Surveyor do visit

L.R. Ntima/Ntakira/537

and establish the acreage held by the family of

M’Mbogori M’Bagine, Francis Murithi, Charles Mutua

and

Susan Nkatha

and file a report in respect thereof within 30 days in order to finalize on distribution.

2. Pursuant thereto, the Meru District Surveyor visited the subject property and lodged his report on 26/6/2019. He set out the areas occupied by the parties as follows: -

a) M’Mbogori M’bagine - 1.23 ha

b) Charles Mutua & Susan Nkatha - 0.87 ha

c) Francis Murithi - 0.87 ha

3. Since at the trial, it had been firmly established that

Charles Mutua

and

Susan Ntkatha

occupied the portion that had been left behind for

Charles Mutua,

it was necessary that their respective shares of occupation and use be identified for purposes of confirming the grant.

4. Pursuant thereto, the Court once again directed that the Meru District Surveyor does return to the ground and identify the respective areas occupied by the said

Charles Mutua

and

Susan Nkatha.

5. The District Surveyor filed his report on 5/3/2020 which stated the occupation as follows: -

a) Susan Mutua - 0.01 ha (homestead only)

b) Charles Mutua - 0.86 ha (physically defined)

6.

Susan Nkatha

was not agreeable with the said report. The Court therefore invited the parties to either file submissions on the said report or affidavits.

Susan Nkatha

filed her affidavit on 11/6/2020 but

Charles Mutua

filed none. On the other hand, the children of the late M’Mbogori M’Bagine filed their affidavit in opposition to the averments made by Susan Nkatha in her said affidavit.

7. In her affidavit,

Susan Nkatha

stated that when the District Surveyor went to the ground, her brothers pointed out to him her house/homestead as her portion. They disregarded her protestations that she had a portion inside the portion of

Charles Mutua

where she farms. She stated that she would only like to have ¼ of an acre which she has been hitherto occupying.

8. As I have already stated,

Charles Mutua

chose not to address the Court on the Surveyors report. He did not deny or challenge

Susan Mutua’s

contentions. The protestations of the children of M’Mbogori were not specific or particular but were general in nature.

9. The Court has considered the evidence tendered at the trial. Because of the initial intention petitioner and her brothers to disinherit the family of

M’Mbogori M’Bagine,

the testimonies of the respondents (the family of the second house of the deceased) was cagy and unreliable. They did not tell the truth regarding their respective occupation on the ground. However, it was clear that

Susan Nkatha

occupied the portion of

Charles Mutua.

The only issue was, what was the extent of the occupation.

10. The Court is aware that

Susan Nkatha

was compensated for her area that was compulsorily accrued by the government. That when the Deputy Registrar visited the scene, he indicated in his report dated 13/3/2019 as relates the portion occupied by

Susan Nkatha

as follows: -

“This section is approximately 105 feet by 77.6 ft. On this section stand the following.

1. Semi-permanent timber house at one corner occupied by Susan Nkatha (administratix). There is also a small timber kitchen, small kitchen garden with Sukuma wiki and some construction materials (sand and stones) outside.

2. … ”.

11. I have considered

Susan Nkatha’s

protestation that she has nothing for her son. However, it had been established at the trial that her son by the name Samuel had been taken care of by his father, whose name was given as

Jonah M’Mwitari,

and had given him land.

12. In view foregoing and the fact that the sum of Kshs.4,400,000/- was ordered to be distributed to all the beneficiaries equally, the grant is hereby confirmed and

LR. No. Ntima/Ntakira/537

distributed as follows: -

a) Estate of M’Mbogori M’Bagine - 1.23 ha

b) Charles Mutua - O.78 ha

c) Susan Nkatha - 0.09 ha

d) Francis Murithi - 0.85 ha

13. This being a family matter, I will make no order as to costs.

It is so ordered.

DATED AND DELIVERED AT MERU THIS 25TH DAY OF JUNE, 2020.

A. MABEYA

JUDGE