When a man dies without leaving behind a will, he leaves his family at the risk of protracted battles over who gets what share of his property.
The situation can especially get messy if some of the children are malicious and willing to do anything to inherit more property than their siblings.
This is the case of 95-year-old widow Kasi Girigorio Baranya, a resident of Tharaka Nithi County, whose husband M’baranya Kathiori died in 2002 without leaving a will on sharing of his property amongst his 11 children.
The deceased left behind over 25 acres of land, with an acre valued at between Sh1.5 and Sh2 million.
“He died having not written his will, all he left were verbal instructions on where each son would build their homes,” Mr Mwirigi Kaburu, the family lawyer told the Nation.
The widow is now old, sickly and worried that the slow moving wheels of justice may deny her the opportunity to subdivide the land to all her children in equal measure.
This is because one of her sons, Njagi Baranya, illegally obtained a grant that allowed him to subdivide sections of his father’s land which he then sold without the approval of his mother and siblings.
The grant was issued by a magistrate’s court sitting in Chuka on May 30, 2011 and confirmed on September 20 of the same year and since then several properties have been put up on some of the parcels.
Mr Njagi pleaded with the court to be allowed to subdivide the land on grounds that the title deed had been lost while in reality, the document was in the hands of his mother.
Some of the sold plots are prime properties near Mitheru shopping centre in the county.
Mr Njagi’s mother and his sisters only realised the parcels had been sold after they chanced on strangers putting up houses and moved to the High Court in Meru to have the issued grant annulled.
In their petition, Mr Njagi’s mother and her daughters told the court that he did not petition for the grant with their consent.
In his response, Mr Njagi claimed that their father had left behind a will and that he did not act wrongfully as each party got what the deceased had bequeathed to each of his heirs.
He further presented what he purported to be his father’s will, a document that was written in Kimeru language with an English translation.
Justice J.A. Makau observed that Mr Njagi had not mentioned the existence of any will in his 2011 application for confirmation of the grant.
“Without going into the alleged will, it should be pointed out that the petitioner is not the person appointed as the executor of the purported will,” Justice Makau ruled.
The judge also observed that Mr Njagi did not contest the applicants’ assertion that he had not given them notice as persons entitled in the same degree as or in priority when he petitioned for the grant.
“The probate and administration rules state that letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant,” the judge said.
He further observed that Mr Njagi deliberately refused to disclose his father’s other heirs, failed to notify them of his intention to seek a grant and seek their consent contrary to section 40 of the Probate and Administration rules.
“I therefore find that the grant of representation issued and confirmed in favour of the petitioner was obtained fraudulently by making of a false statement by concealment from the court something material to this cause. The grant issued to Njagi Baranya on May 30, 2011 and confirmed on September 20, 2011 be and is hereby annulled,” Justice Makau ruled on August 6, 2013.
The ruling added that all parcels of lands be reverted into the name of the deceased.
Seven years after the ruling was issued, the occupants of the parcels are yet to vacate the widow’s property.
Last year, the widow filed a fresh succession cause at the Chuka Law Courts seeking to have all of her late husband’s land divided equally amongst all her children.
The case has however been affected by the Covid-19 pandemic that has slowed down normal court proceedings.