Judge orders late childless couple's property shared by man's kin

Who should inherit wealth when a married couple dies without children and without a will?

This is the question High Court Judge Julius Ng’arnga’r was asked to resolve in a case between a land buyer and an alleged neighbour of a man and a woman who died without heirs.

In the end, the court ordered that the wealth reverts to the man’s family, to be inherited by his eldest brother.

Gerishon Gathui Nduku married Milka Wairimu. Unfortunately, as life has it, they both passed away, with Gathui preceding his wife.

It was an easy process for her to claim his wealth as his widow, which she did sometime in 2003. However, her interest in the property would cease upon death. Wairimu also followed her husband, which sparked a court battle between Margaret Wanjiku and Samuel Muriithi over who should own the property left by the couple.

Wanjiku’s case was that she purchased two acres of the land from one Jane Muthoni Ngige. However, the magistrate’s court disagreed with her after finding that the deceased was still the registered owner.

Muriithi, on the other hand, had the right to inherit the contested property. Aggrieved, she moved to the High Court arguing that the lower one erred by failing to find that Muriithi was the two deceased neighbour and had no relationship with them.

She argued that when Wairimu died, the property ought to have reverted to her late husband’s relatives. To make matters worse, both Wairimu and Nduku died without writing a will, to explain who and how their wealth would be shared.

The court heard that Nduku had a brother called Ngigi Nduku, who had two sons but one had also died, leaving one Muthike Ngige as the closest relative to Jane Muthoni as her son.

She stated that it was Muthoni and her two sons who sold their share of the wealth to her though Muthike was allegedly reluctant to file for letters to administer the estate as he knew she would challenge the same.

Wairimu asserted that Murithi was just a neighbor and could not be taken as a relative or a child of the deceased.

She said he misled the court by arguing that the two had three children. She further argued that her point would be proved by succession case filed by Wairimu when her husband died as she did not name him as a son or beneficiary.

In her case, Wairimu asked the court to either issue her with the letters of administration, or the same be issued to one Gerisha Gichuru who was now the closest relative to the Nguku.

On his end, Muriithi claimed that Nguku and Wairimu owned the land in contest. He further said Nguku’s brother, Ngigi, and Muthoni had also died.

According to him, Wairimu was an aunt to his paternal grandmother, who was Nduku’s step sibling. He also claimed that the two had taken him up as a son, since they did not have their own. He backed his claims through the testimony of James Kabai and Peter Magu.

According to him, Wanjiku could not claim the land as she bought it from Muthoni. He stated that she should have sued her to seek a refund when she was alone.

Muriithi also said that Muthike had no interest in the property.

Justice Ng’arNga’r observed that the land was registered jointly in the names of Wairimu, Joseph Kariuki, Muthike and Wanjiku.

He said on the flip side, there was no evidence to show that Muriithi had been listed as Nduku’s biological or adopted son.

“Who then was he to the deceased herein? It was his evidence that the deceased was his aunt for his paternal grandmother and the late Gerishon Nduku were stepbrothers,” said Justice Ng’arng’ar.

The judge observed that where a man or woman dies without a will, and without surviving children, the father, if not dead, then the mother, then the siblings, their children take precedence as heirs.

If all those are not alive, then the property ought to be passed to step brother, step sister or any of their children if they are not alive.

According to the judge, the last in the list are relatives who are in the nearest degree of bloodline.

According to him, if Wairimu had no siblings or relatives and those who were alive were her late husband’s, then Ngigi and his children ranked the highest.

He observed that there was a clear order that Wairimu’s life interest in her late husband’s wealth would end upon her death. For this, he said,the property would be shared by her late husband’s identified heir.

Justice Ng’arng’ar directed that land registrar in Kerugoya to place restrictions over the land until Nduku’s relatives get the necessary authority to manage it.

“When it came to the estate of the late Gerishon Nduku, it was noted he left behind the deceased as his wife thus being granted life interest over the suit land. There was no mention of the respondent being their alleged son,” he said.