[2018] KEHC 613 (KLR)
The court found that the issues raised by the petitioners, though framed as constitutional violations, were in substance objections to the distribution of their late father's estate. The Law of Succession Act provides the appropriate legal framework and forum for such disputes, including the right to challenge...
Source-derived case information.
- Citation
- [2018] KEHC 613 (KLR)
- Parties
- Applicant: Anne Njoki Munga; Applicant: Elizabeth Wacheke; Applicant: Loice Wangoi; Applicant: Priscillah Wangari; Respondent: Clement Solomon Munga; Respondent: Samuel Ng'anga
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Application to Discharge Injunctive Orders and Strike Out Petition
- Outcome
- petition dismissed; application to discharge injunctive orders allowed
- Judges
- HK Chemitei
- Legal Topics
- Succession Disputes, Distribution of Estate, Gender Discrimination, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Njoki Munga
Applicant
Elizabeth Wacheke
Applicant
Loice Wangoi
Applicant
Priscillah Wangari
Applicant
Clement Solomon Munga
Respondent
Samuel Ng'anga
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Discharge Injunctive Orders and Strike Out Petition
Legal Issues
- 1 Whether the petitioners were unlawfully excluded from their late father's estate on the basis of gender.
- 2 Whether the constitutional petition is the proper forum for challenging the distribution of the deceased's estate.
- 3 Whether injunctive or prohibiting orders against the suit properties should be lifted.
Ratio Decidendi
The court found that the issues raised by the petitioners, though framed as constitutional violations, were in substance objections to the distribution of their late father's estate. The Law of Succession Act provides the appropriate legal framework and forum for such disputes, including the right to challenge exclusion from inheritance. The court held that the constitutional petition was an improper vehicle for these claims, as the petitioners had not pursued their remedies within the succession proceedings. Furthermore, Section 29 of the Succession Act does not discriminate against female beneficiaries, and the petitioners' claims of gender-based exclusion should have been addressed in...
Court Disposition
petition dismissed; application to discharge injunctive orders allowed
Orders
- All injunctive or prohibiting orders registered against Waitaluk/Kapkoi/Block 11/Gutongorio B 53, 54, 57, 58, 70, 71 and 6 are discharged and removed from the lands registers.
- The petition is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
PETITION NO. 5 OF 2012
ANNE NJOKI MUNGA..............................................1ST PETITIONER
ELIZABETH WACHEKE..........................................2ND PETITIONER
LOICE WANGOI .......................................................3RD PETITIONER
PRISCILLAH WANGARI..........................................4TH PETITIONER
VERSUS
CLEMENT SOLOMON MUNGA...........................1ST RESPONDENT
SAMUEL NG'ANGA................................................2ND RESPONDENT
R U L I N G
1. By his application dated 15/5/2018 the applicant prays for the following relief.
1) That the injunctive or prohibiting orders registered against the following titles be lifted forthwith namely
a) Waitaluk/Kapkoi/Block 11/Gutongorio B 53, 54, 57, 58, 70, 71 and 6 respectively.
2. The proceedings herein be struck out with costs for being an abuse of the court process.
2. The affidavit of the applicant sworn on the same date together with the annextures speak as much.
3. The respondent on their part filed grounds of opposition dated 1/11/2017 arguing that the motion was a mere denial and lacked credibility and it should be dismissed.
4. The facts and issues surrounding the petition herein are fairly straight forward. The petitioners/Respondent as well as the applicant herein are sisters and brothers. They are all the children of their late father Clement Munga Muna. The issue relating to their father's estate was determined vide Nairobi succession case No. 857/1992 where the grant issued on 12/11/1992 was confirmed m on 28th January 1994 and rectified on 20/6/1994. Essentially the applicant herein together with his brothers and others benefited from the estate.
5. The respondent (the girls) apparently were not included in the estate. From the records available in the proceedings herein I am unable to see whether they mounted any objection proceedings in the succession cause.
6. However they did file this petition citing breach of their fundamental rights, namely, that as girls of the deceased they were not considered during the distribution of the estate.
7. It further appears that save for this cause, they have had multiplicity of suits pitting them and their brothers. These include
1) Succession cause No. 857/1993
2) Eldoret Judicial review No. 76/1995
3) Kitale CMCC No. 25/1994
4) Eldoret Misc. App No. 193/1994.
8. The above are not denied by the respondent. In the case at hand, they were able to obtain orders baring the applicant from dealing adversely with the aforestated properties.
9. I have read the entire record herein and clearly, on the face of it, all that the respondents are agitating are their rights in their father's estate.
10. The issues dealing with a deceased estate are governed under the Succession Act Cap 160 Laws of Kenya. Although the petition herein is coached as Constitutional, it is in my view, respectively, an objection proceedings too the grant through the backdoor. To the extend that it relates to the estate of their late father, I do not find anything Constitutional.
11. The question of discrimination based on their gender is clearly addressed under the provisions of Section 29 of the Succession Act. The Act spells out who are the beneficiaries of the estate of a deceased person. A clear reading of the same does not demonstrate any biasness.
12. In the premises, I think that the proper forum for the respondent is through the succession process and not a constitutional petition. If they are entitled to the estate or not then the family court ought to render itself so.
13. In a nutshell this application ought to succeed and with it this entire petition must fail. The application dated 15/5/2018 is allowed. All orders restraining the applicants use of parcels number Waitaluk/Kapkoi/Block 11/Gutongorio/(B) 53, 54, 57, 58, 70, 71 and 6 are hereby discharged and removed from the lands registers. The petition herein is hereby dismissed with no orders as to costs.
Orders accordingly.
Delivered, signed and dated at Kitale this 11th day of December, 2018.
_________________
H.K. CHEMITEI
JUDGE
11/12/18
In the presence of:
Ingosi for Gatheru Gathemia for Applicants
No appearance for the Respondents
Court Assistant – Kirong
Ruling read in open court.