[2017] KEHC 502 (KLR)
The court declined to grant the application for rectification of the grant or to certify it as urgent because the applicant failed to provide supporting evidence that Geoffrey Ngunjiri Gathuma had no surviving spouse or children. The court emphasized that its previous judgment was based on the evidence presented,...
Source-derived case information.
- Citation
- [2017] KEHC 502 (KLR)
- Parties
- Applicant: Charles Wangungu Gathuma; Respondent: Peter Kihagi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 240 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Rectification of Grant
- Outcome
- application declined with liberty to reapply upon provision of evidence
- Judges
- NA Matheka
- Legal Topics
- Rectification of Grant, Distribution of Estate, Proof of Survivorship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Wangungu Gathuma
Applicant
Peter Kihagi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Rectification of Grant
Legal Issues
- 1 Whether the grant of representation should be rectified to devolve the estate solely to the petitioner if the other beneficiary is not survived by any heirs.
- 2 Whether the application for rectification should be certified as urgent and granted ex parte in the absence of evidence of survivorship.
Ratio Decidendi
The court declined to grant the application for rectification of the grant or to certify it as urgent because the applicant failed to provide supporting evidence that Geoffrey Ngunjiri Gathuma had no surviving spouse or children. The court emphasized that its previous judgment was based on the evidence presented, and absent proof of lack of heirs, it could not alter the distribution of the estate. The applicant was given liberty to supply the necessary evidence within 30 days, but until such evidence is provided, the orders sought could not be granted ex parte or otherwise.
Court Disposition
application declined with liberty to reapply upon provision of evidence
Orders
- Application for rectification of grant is declined.
- Application for certification as urgent is declined.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
HIGH COURT SUCCESSION CAUSE NO. 240 OF 2007
IN THE MATTER OF THE ESTATE OF GATHUMA S/O KAGUMO (DECEASED)
CHARLES WANGUNGU GATHUMA......PETITIONER/APPLICANT
V E R S U S
PETER KIHAGI..............................................PROTESTOR/OBJECTOR
R U L I N G
5/12/17
Before T. Matheka, J
Court Asst. Harriet
In chambers
On 18th October 2017, I delivered judgment and made orders that the Estate of the late Gathuma s/o Kagumo be shared equally between Charles Wangungu Gathuma and the heirs of Geoffrey Ngunjiri Gathuma.
Before me is a certificate of urgency dated 4/12/2017 presenting an application of the rectification of grant issue on 1/11/17 sharing the Estate equally between the two. The applicant now wants this court to rectify the grant and state that if “Geoffrey Ngunjiri is not survived by anybody the estate to devolve to the petitioner”.
This court’s judgment was based on the evidence before it. At page 7 I said;
“Though the other beneficiary is deceased, the petitioner did not disclose whether he had a family who would be entitled to a share of the estate.”
Apart from his own word, there is no supporting evidence that Geoffrey Ngunjiri had no wife or child. Without supporting evidence to that effect, I decline to certify the application as urgent.
The applicant’s prayer is that he be granted the orders exparte as there is no one to serve.
I also decline to do so until the appropriate evidence is supplied to court. He is at liberty to do so within 30 days from the date hereof.
Orders accordingly.
Dated this 5th December 2017
TERESIA MATHEKA
JUDGE