The High Court has ruled that a widow who did not have children with her late husband will now inherit his property and not his parents.
Stephen Mwaura Kungu died on April 26, 2019 in Nairobi. He left a widow Elizabeth Gicugu Ngari whom he had married in 2008 under Kikuyu customary law. They did not have a biological child.
Elizabeth's father-in-law Peter Kimani moved to court seeking to have his son’s properties inherited by him since she did not have any child with Mwaura.
He said the widow had left out a foster child that his deceased son was taking care of as his own.
He claimed Elizabeth had remarried and had gotten a child.
In a judgement delivered on January 19, Justice Aggrey Muchelule ruled that Kimani had since the deceased’s death, benefitted to the tune of about Sh4 million from the insurance cover and from the employee welfare kitty.
"This is courtesy of the deceased’s generosity. It would be stretching his luck too far to want more from the estate," the judge said.
He added that as for the child, he considered that there was no formal arrangement between him and the deceased. But the deceased took him to school. The child considered him as a father. He considered the child as his son.
Nonetheless, the child had parents, they did not swear any affidavit to say that they had given their child to the deceased in any permanent way.
"Given all the facts of the case, I find that the child was dependent on the deceased immediately prior to his death", he added.
“Considering that the estate was not substantial, I order that Elizabeth, when confirming the grant, will set aside Sh750,000 to be put into an interest generating account to be operated jointly by herself and the Deputy Registrar and to be released to the child upon attaining the age of majority," Justice Muchelule ruled.
In the case the deceased’s estate comprised bank accounts in Equity and Cooperative banks; motor vehicle and several parcels of land in Naiorbi, Ruiru, Limuru.
The deceased left his father, mother Jane Nyambura and siblings who included Duncan Kimani and James Njoroge Kimani.
The court heard that when the deceased was alive, he was staying with PK, a minor in primary school.
He was educating the child. The child’s father is James Njoroge Kimani. The deceased had requested him to hand over the child to him for upkeep.
Kimani argued that after the deceased’s demise, the respondent abandoned the child who is now living with his uncle Duncan.
On October 14, 2019 Elizabeth petitioned the court, and on May 19, 2020 was issued with a grant of letters of administration intestate. The grant has not been confirmed.
Kimani filed summons seeking to be found to be a dependant of the deceased. He stated in the supporting affidavit that the deceased catered for him, for his mother and for the child while he was alive, that they all depended on him.
He stated that he and his wife were peasant farmers, in subsistence farming as a source of livelihood. When the deceased was alive, he stated, he took care of their daily upkeep.
The deceased had taken out a life insurance cover and had indicated his father as the next of kin. When he died, Kimani received Sh7,598,800.
Kimani is 73 and said he was diabetic with medical bills. His wife is 68.
He said Elizabeth had a relationship with one Stephen Githu, and the two have a child. Kimani and his family considered her to be remarried, and therefore should no longer inherit the estate of the deceased.
Elizabeth denied that her father-in-law, his wife and the child were the deceased’s dependants.
She stated that the deceased’s relationship with the child was that of uncle and nephew, and it was on that basis that he was assisting the child.
It was notable that both Kimani and his son Duncan kept saying that the deceased had adopted the child. They also talked of the deceased being the foster father to the child.
There was no formal adoption or foster arrangement between the deceased and the child.
She denied that she is remarried. There was also no evidence of such marriage.
-Edited by SKanyara
