[2008] KEHC 3637 (KLR)
The court found that the trial magistrate erred in appointing 8 administrators, which contravened Section 56(1)(b) of the Law of Succession Act that limits the number of administrators to four. The court also held that the distribution of the estate must strictly follow Section 38 of the Act, which provides for...
Source-derived case information.
- Citation
- [2008] KEHC 3637 (KLR)
- Parties
- Appellant: Fredrick Njiru Nyaga; Respondent: Vinzenza Rwamba Njiru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Succession Disputes, Administration of Estates, Distribution of Intestate Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Njiru Nyaga
Appellant
Vinzenza Rwamba Njiru
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appointment of 8 administrators contravened Section 56(1)(b) of the Law of Succession Act.
- 2 Whether the distribution of the deceased's estate was in accordance with Section 38 of the Law of Succession Act.
- 3 Whether the value of the estate was properly proved for jurisdictional purposes.
Ratio Decidendi
The court found that the trial magistrate erred in appointing 8 administrators, which contravened Section 56(1)(b) of the Law of Succession Act that limits the number of administrators to four. The court also held that the distribution of the estate must strictly follow Section 38 of the Act, which provides for equal distribution among the children unless otherwise agreed. Additionally, the court noted that the value of the estate must be proved and not merely alleged to establish the court's jurisdiction. As there was no evidence of the value of the land, the lower court's orders were flawed. Consequently, the appeal was allowed, and the orders of the lower court were set aside.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- Orders of the lower court are set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 39 of 2002
FREDRICK NJIRU NYAGA…………………………...…….APPELLANT
VERSUS
VINZENZA RWAMBA NJIRU……………………………RESPONDENT
JUDGMENT ON APPEAL
This appeal arises out of Succession Case wherein the lower court made order distributing the 6 ¼ acres of the deceased land among beneficiaries. The grounds of appeal as set out in the memorandum of appeal dated 29/1/2007 (with leave). The first ground is that the Trial Magistrate appointed 8 persons to be administrators of the estate. This is contrary to provisions of Section 56 (1) (b) which limits the number of administrators to 4 persons in respect of same estate.
Regarding issue numbered 2, 3, 4 distribution of a deceased estate intestate is set out in the Succession Act. The court has to distribute the estate as provided. The evidence here shows that the survivors were 6 daughters and one son distribution is subject to Section 38 of the Act. The estate should be distributed according to law unless parties agree otherwise. Concerning ground 5 the value of the estate for purpose of conferring jurisdiction has to be proved not just alleged. I find no evidence of the value of the land.
Upon considering the above I find that the appeal succeeds the grounds of appeal have merit. The appeal is therefore allowed. Since this dispute involves members of the same family, no order is made as to costs. Each party to meet its own costs.
Orders accordingly.
Dated this 18th January, 2008.
J. N. KHAMINWA
JUDGE
18/1/2008
Khaminwa- Judge
Njue – Clerk
Mr. Kathungu
Ms Wairimu
Read in open court
J. N. KHAMINWA
JUDGE