Distribute your property as you like, Appeal court rules

Concept of the division of family property. [iStock Images]

The law recognises a person’s power to distribute his property as he deems fit, Court of Appeal judges have ruled.

Appellate judges Hannah Okwengu, Fatuma Sichale and Mbogholi Msagha ruled that a man may give unequal shares of the property to his children but the court can only interfere with the Will if the testator has failed to make reasonable provisions for his dependents.

“In our view, the law recognises a testator’s power to distribute his property as he deems fit. He may give unequal shares to his children, be they, boys or girls. He can even opt to give his estate to charity,” stated the Appellate court judges' decision.

The judges made the ruling in an appeal that challenged a decision made on December 13, 2019, Justice Francis Gikonyo sitting in Meru, that revoked the distribution of the estate of M’Itunga M’Imbutu.

M’Imbutu died on June 11, 2012, and was survived by Gladys Nkirote Itunga (widow), daughters Julia Mbuthu Itunga, Charity Muthoni Itunga, Lydia Maiti Francis and a son, Julius Majau M’Itunga. 

Before his death, M’Imbutu caused a Will to be prepared by the firm of Meenye and Kirima Advocates. In the document dated February 22, 2012, he distributed land parcel No Abogeta/ Upper Kithangari/732.

Muthoni got two acres, Maiti two acres, Nkirote (wife) two acres where his houses are located and the remaining nine were to go to Majau whom he named as the administrator. 

The deceased also said his land parcel No Abogeta/ Upper Kithangari/486 was administered to Mbuthu (one acre) and Majau, seven acres.

Nkirote had in the High Court suit objected to the validity of the Will, which the court found to be valid.

Even with the finding, the distribution did not sit well with the judge who said in part of his judgment said he was perturbed by the discrimination against the daughters on the basis of gender and status on claims that they were married. 

The High Court noted that the deceased made the Will to disinherit his own daughters and that a Will that offends the law and the Constitution is invalid.

The court in invalidating the Will said the estate will be governed by the law on intestacy. The court appointed Everlyn Wanja (presumably a daughter-in-law to the deceased) and Charity Muthoni Ikiugu as joint administrators.

Wanja and her daughter Naomi Mwendwa Majau dissatisfied with the outcome lodged an appeal on March 16, 2019.

The Appeal Court judges said interfering with the Will and proceeding to distribute the property as if the deceased had died intestate, would be to make a mockery of a deceased’s free will to distribute his/her property as long as he/she has made reasonable provision for his dependents.

They said that the issue of unfair distribution was not raised by the parties.

“This was picked up by the trial judge who was “perturbed” by what he considered discrimination. In our view, he had no reason to do so as this was not an issue raised in the pleadings,” they said.

The judges said the High Court overreached itself by considering a matter not in dispute.

They set aside the judgment of the High Court and directed that the estate of the deceased be distributed in accordance with the deceased written Will.