[2008] KEHC 3656 (KLR)
The court found that while the objector had proved his claim of having purchased one acre of land from the deceased's family, the transaction was incomplete due to lack of Land Control Board consent and the absence of transfer or possession. However, in the interests of justice and given the willingness of the...
Source-derived case information.
- Citation
- [2008] KEHC 3656 (KLR)
- Parties
- Petitioner: Alice Kavia Nyaga; Objector: Abiud Njue Moses
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Application 803 of 2002
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant and Distribution of Estate
- Outcome
- Objection allowed in part; one acre to be allocated to objector from Mathew's share; grant confirmed as per ruling.
- Legal Topics
- Succession of Estates, Distribution of Inheritance, Sale of Land Without Consent, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Kavia Nyaga
Petitioner
Abiud Njue Moses
Objector
Procedural Posture
Succession Cause / Ruling on Objection to Grant and Distribution of Estate
Legal Issues
- 1 Whether the objector is entitled to one acre of land allegedly purchased from the deceased's estate.
- 2 Whether the sale of land without Land Control Board consent is valid and enforceable in the context of succession proceedings.
- 3 How the estate should be distributed in light of the objector's claim.
Ratio Decidendi
The court found that while the objector had proved his claim of having purchased one acre of land from the deceased's family, the transaction was incomplete due to lack of Land Control Board consent and the absence of transfer or possession. However, in the interests of justice and given the willingness of the surviving administrator to allocate Mathew's share, the court ordered that one acre be allocated to the objector from Mathew's inheritance. The court directed the administrator to subdivide the land accordingly within 45 days, confirming the grant in line with this ruling.
Court Disposition
Objection allowed in part; one acre to be allocated to objector from Mathew's share; grant confirmed as per ruling.
Orders
- The surviving administrator shall subdivide the land for distribution and allocate the objector one acre out of Mathew's share.
- The subdivision shall be carried out within 45 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Succession 803 of 2002
IN THE MATTER OF ESTATE OF ISAIAH MWARANJIRU KANGITI
ALIAS NYAGA KANGITI….(DSD)
ALICE KAVIA NYAGA……………………………….PETITIONER
VERSUS
ABIUD NJUE MOSES…………...……OBJECTOR/APPLICANT
RULING
Alice Kavia Nyaga the widow of deceased petitioned for a grant of representation in the estate of her deceased husband, Isaiah Mwaranjiru Kangiti.
On 21/9/1998 an objection was filed by Abiud Moses Njue claiming one acre of land he had purchased from the deceased and that he was not included in P&A Form 5. The objector has filed citations against Alice to accept or refuse grant. Now this is wrong procedure because the petitioner had already petitioned for grant.
The protester gave evidence in court. He said he purchased land from the other wife of deceased called wambogo and paid full purchase price and paid to her and her son Mathew. He exhibited a sale agreement as exhibit 1 and Exhibit 2. No Land Board Control Consent was obtained. To date of trial he never got possession or the transfer or the subdivision of his share.
On the part of Petitioner she said the sale was after the death of deceased. And she does not know about it as was between the protester and the deceased administrator and her son.
From the above it is my finding that the claim of the protester is proved against deceased beneficiary and her son. However the transaction has never been completed. No consent of the Land Board has been obtained. One vendor died and the other Mathew has disappeared no one knows of his whereabouts.
The surviving administrator confirms that there is a share of land to be inherited by the son of deceased administrator Mathew and she is willing to subdivide the land and give Mathew his inheritance. It is my view and I find that justice can only be done to the protestor by allocating one acre of the inheritance of Mathew to him.
I therefore order the surviving administrator to proceed to subdivide the land for purpose of distribution and allocate the protester one acre out of Mathew’s share. The subdivision to be carried out within the next 45 days.
No order as to costs. It is so ordered.
Dated this 14th January, 2008.
J. N. KHAMINWA
JUDGE
The grant is hereby confirmed in accordance of this ruling. Certificate to issue.
J. N. KHAMINWA
JUDGE
14/1/2008
Ruling read in present of both parties in open court.
J. N. KHAMINWA
JUDGE