The court affirmed that the daughters of the late Monica Wamaitha Kihara are rightful beneficiaries entitled to inherit their mother’s estate on an equal footing with her sons.
The High Court has dismissed an elderly woman’s attempt to disinherit her sisters-in-law, ruling that her reasoning was legally weak and constitutionally unacceptable.
Ms Teresiah Wanjiku Njoroge had argued that only male children are entitled to inherit their parents’ property and that her sisters-in-law, being married, had no valid claim to the estate left to their late mother.
But the court rejected her position as “legally indefensible, repugnant, and archaic”, a view that has been expressly stated by the law of succession and the Constitution.
“The Constitution is unequivocal. It provides that women and men have the right to equal treatment and prohibits discrimination, direct or indirect, on the grounds of sex or marital status,” the court held, noting that the law draws no distinction between male or female, married or unmarried children when it comes to inheritance.
The court affirmed that the daughters of the late Monica Wamaitha Kihara — led by Irene Wambui Kimani — are rightful beneficiaries entitled to inherit their mother’s estate on an equal footing with her sons.
More than 30 years in court
The court affirmed that the daughters of the late Monica Wamaitha Kihara are rightful beneficiaries entitled to inherit their mother’s estate on an equal footing with her sons.
The case, which has lingered in the corridors of justice for more than three decades, highlights the slow pace at which some Kenyans are accepting constitutional principles on equality and inheritance.
Monica had inherited a share of her late husband James Kihara Njoroge’s substantial estate during a succession process initiated in 1985.
Mr Kihara, who died leaving behind two wives — Monica and Cecilia Wangari — and 12 children, had his properties divided equally between his two households.
Monica died on September 30, 1993, before distributing her share of the estate among her six children, giving rise to the long-running dispute that culminated in the ruling.
The beneficiaries included Irene Wambui Kimani, Caroline Wambui Kihara, Margaret Wanja Thiongo, Alice Wanjiku Munyui, John Njoroge Kihara and Ngugi Kihara.
A grant of letters of administration was first issued to Monica’s two sons, John Njoroge and Ngugi Kihara, in August 1994, with their sisters consenting them to administer the estate.
Ngugi, however, passed away, and his widow, Rachel Wanjiru Ngugi, joined as an administrator. She too passed away, and her estate’s interests are represented by her children and her mother, Dorcas Wairimu Kamau.
John also passed away, and his widow, Teresia Wanjiku, was appointed as an administrator. But in a ruling in October 2019, the grant held by Teresiah was revoked after she was accused of misappropriating the estate.
Cancelled titles, new administrators
The case has lingered in the corridors of justice for more than three decades.
That same court ordered the cancellation of various titles that had been transferred from Monica’s name.
On June 7, 2021, a fresh grant was issued to Irene and her sister Caroline to administer the estate.
The administrators came up with a mode of distributing the properties and which was consented by all the beneficiaries apart from Teresia, who insisted that her sisters-in-law should not benefit. She also claimed that some of the properties of the estate had been gifted to her husband hence should not form part of the estate.
In the proposal that was adopted by the court, the house of John (Teresia's late husband) was given all the properties they have always possessed, developed and claimed. They include a farm in Juja, properties in Kabete and Wangige and half of the matrimonial home Kabete.
The house of Ngugi was similarly given the properties they have always possessed including a property known as three coins and another in Changamwe and the other half of the matrimonial home.
Teresia's argument: Daughters should not inherit
On her part, Teresia submitted that daughters are not entitled to inherit the property. She testified that when her father in-law died, he left a Will, which stated that only the boys were to inherit.
According to Teresia, her sisters’ in-law have been married for more than 50 years, and should therefore, not be coming back to take properties.
She also protested that the daughters were taking what she considered to be prime commercial properties in Mombasa’s central business district, which she estimated to be valued at more than Sh300 million while she had been left with the rural properties in Kabete.
Teresia also claimed that the three properties were gifted to her husband and thus not available for distribution.
The court, however, said she failed to prove the allegations.
“A person alleging a gift inter vivos must prove clear and unequivocal intention and a complete transfer by the donor. The protester provided no deed of gift, no transfer document and no credible evidence,” said the court.
The court rejected Teresia’s proposal saying she was seeking an equal share of the remaining assets after her house has already benefitted from the Juja farm and two other properties in Kabete.
“The court’s duty, therefore, is not just to the living, whose infirmity was apparent on the record, but to the memory of the Deceased, whose estate has remained unquiet for 31 years. Justice delayed is justice denied, and this Court must now cut the Gordian knot of this familial dispute,” concluded the court.
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