[2011] KEHC 3785 (KLR)
The court found that the only substantive dispute concerned the applicant's claim to 1¼ acres of the estate land, which he alleged to have purchased and which he claimed the deceased held in trust for him. The court held that such a trust claim could not be determined within the succession proceedings and must be...
Source-derived case information.
- Citation
- [2011] KEHC 3785 (KLR)
- Parties
- Applicant: Gathirwa Gathuri Muraithe; Respondent: Crispus Wachira Ndegwa; Respondent: Eunice Wangui Mugo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 507 of 2007
- Procedural Posture
- Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
- Outcome
- Further proceedings in the succession cause stayed pending determination of trust claim.
- Legal Topics
- Succession of Estates, Distribution of Land, Confirmation of Grant, Trusts in Land, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gathirwa Gathuri Muraithe
Applicant
Crispus Wachira Ndegwa
Respondent
Eunice Wangui Mugo
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Confirmation of Grant and Protest
Legal Issues
- 1 Whether the applicant is entitled to a larger share of the estate land based on an alleged purchase of 1¼ acres from a third party.
- 2 Whether the deceased held 1¼ acres of the estate land in trust for the applicant.
- 3 Whether the estate land should be distributed equally among the beneficiaries under Section 38 of the Law of Succession Act.
Ratio Decidendi
The court found that the only substantive dispute concerned the applicant's claim to 1¼ acres of the estate land, which he alleged to have purchased and which he claimed the deceased held in trust for him. The court held that such a trust claim could not be determined within the succession proceedings and must be addressed in separate proceedings under Order 37 rule 1 of the Civil Procedure Rules. Accordingly, the court stayed further proceedings in the succession cause pending the hearing and determination of the trust claim. The applicant was directed to initiate the appropriate proceedings within 90 days, and costs were ordered to abide the outcome of the cause.
Court Disposition
Further proceedings in the succession cause stayed pending determination of trust claim.
Orders
- Stay of further proceedings in this cause pending hearing and determination of proceedings under Order 37 rule 1 of the Civil Procedure Rules and rule 41(3) of the Probate and Administration Rules.
- Applicant to take out the aforesaid proceedings within 90 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
SUCCESSION CAUSE NO. 507 OF 2007
IN THE MATTER OF THE ESTATE OF GATHURI MURATHE – DECEASED
GATHIRWA GATHURI MURAITHE.....................................PETITIONER/APPLICANT
VERSUS
CRISPUS WACHIRA NDEGWA........................................................1ST PROTESTOR
EUNICE WANGUI MUGO..................................................................2ND PROTESTOR
RULING
A grant of Letters of Administration intestate in respect of the Estate of Gathuri Murathe, deceased, was made to Gathirwa Gathuri Muraithe on 9th September 2008. GATHIRWA GATHURI MURAITHE, hereinafter referred to as “the Applicant,” has now applied for the grant to be confirmed vide the summons for confirmation of grant dated 20th January 2009. The summons is supported by the two affidavits of the Applicant and that of Kuhia Wa Thinjii. CRISPUS WACHIRA MUGO and EUNICE WANGUI MUGO each filed two affidavits of Protest to oppose the Summons. Directions were given to the effect that the dispute be determined by affidavit evidence and by written submissions. At the time of writing this ruling the Protestors were the only parties who had filed their submissions.
I have considered the grounds set out on the face of the summons for Confirmation of Grant and facts deponed in the affidavits filed in support plus the facts deponed in the affidavits of Protest. I have also considered the Protestors’ written submissions. There is no doubt that the only Estate asset which is available for distribution is the parcel of land known as L.R. NO. AGUTHI/GATHAITHI/220. The Applicant has proposed that the aforesaid land be shared as follows:
Gathirwa Gathuri Muraithe ………. 1. 8 acres
Crispus Wachira Gathuri…………… 0. 8 acres
Eunice Wangui Mugo……………….. 0. 8 acres
The protestors are of the view that the Applicant has proposed to take a larger share of the land yet they should have shared the same in equal proportions under Section 38 of the Law of Succession Act. The Protestors also claimed that the deceased had shared out his land intervivos. The applicant refuted the Protestors’ contention and stated that he had bought 1¼ acres from one Michael Muraya Muchuche. The aforesaid portion is said to have been consolidated with the deceased’s land. He secured the affidavit evidence of Kuhia Wa Thinjii and Luceta Waruti Muraya to buttress his claim. When Crispus Wachira Ndegwa was confronted with the aforesaid affidavits, he dismissed the contents as of people who are strangers to the deceased’s life time. He claimed that the issues were not raised during the deceased’s Estate. I have carefully considered the rival submissions. The only issue which is in dispute is in respect of the portion measuring 1 ¼ acres which the applicant claims he bought. Basically the Applicant is saying that the deceased was registered as proprietor of 1¼ acres in trust for the Applicant. The issue relating to trust can competently be determined under Order 37 rule 1 of the Civil Procedure Rules. If it turns out that the Applicant did not purchase the aforesaid 1 ¼ acres, then it automatically means that the protest shall succeed and vice versa. A fair order in the circumstances is stay further proceedings in this cause pending the hearing and the determination of the proceedings to be taken out pursuant to the provisions of rule 41 (3)of the Probate and Administration Rules and under Order XXXVI rule 1 (1) (now Order 37) of the Civil Procedure Rules. I direct the Applicant to take out the aforesaid proceedings within 90 days. Costs shall abide the outcome of the cause.
Dated and delivered at Nyeri this 11th day of February 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Kingori for the 1st Protestor and Gitibi holding brief Mabu for Respondent.