[2008] KEHC 3774 (KLR)
The court found that the protestor's claim regarding the grandson, Peter Mwaniki Gakio, was untenable as he was deceased. The inclusion of Daniel Githaiga as a beneficiary was also dismissed since he had already received his share of the estate prior to confirmation, a fact not denied by the protestor. The court...
Source-derived case information.
- Citation
- [2008] KEHC 3774 (KLR)
- Parties
- Applicant: Esther Muthoni Mwaniki; Respondent: Francis Wanjohi Mwaniki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 532 of 2005
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Protest dismissed; grant confirmed as prayed.
- Judges
- MM Kasango
- Legal Topics
- Succession, Confirmation of Grant, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Muthoni Mwaniki
Applicant
Francis Wanjohi Mwaniki
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the protestor's affidavit against confirmation of grant should be upheld.
- 2 Whether the suggested distribution by the co-administrator was just and included all entitled beneficiaries.
- 3 Whether Daniel Githaiga and the grandson Peter Mwaniki Gakio were entitled to a share of the estate.
Ratio Decidendi
The court found that the protestor's claim regarding the grandson, Peter Mwaniki Gakio, was untenable as he was deceased. The inclusion of Daniel Githaiga as a beneficiary was also dismissed since he had already received his share of the estate prior to confirmation, a fact not denied by the protestor. The court concluded that the proposed distribution by the co-administrator was just and in accordance with the law. Consequently, the affidavit of protest was dismissed, and the grant was confirmed as prayed in the summons dated 25th April 2008.
Court Disposition
Protest dismissed; grant confirmed as prayed.
Orders
- The affidavit of protest filed by Esther Muthoni Mwaniki on 1st May 2008 is dismissed.
- The grant is confirmed as prayed in the summons dated 25th April 2008.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 532 of 2005
IN THE MATTER OF THE ESTATE OF PETER MWANIKI GITHAIGA …... DCD
AND
ESTHER MUTHONI MWANIKI ..…….........................……………….. PETITIONER
JUDGMENT
This judgment relates to an affidavit of protest against confirmation of grant filed by Esther Muthoni Mwaniki. She described herself as the wife of the deceased in this succession cause. She is also the mother of her co-petitioner Francis Wanjohi Mwaniki and Daniel Githaiga and Clement Macharia. Her co-petitioner Francis Wanjohi applied for confirmation of grant and sought distribution as follows:-
1. Githi/Igano/417 to Esther Muthoni Mwaniki to have a life interest and thereafter to Francis Wanjohi Mwaniki absolutely.
2. Githi/Muthambi/796 Esther Muthoni Mwaniki to have a life interest and thereafter to Clement Macharia Mwaniki.
In protesting Esther Muthoni stated that the distribution suggested by her co-administrator had left out a grand son namely Peter Mwaniki Gakio. She suggested that he be given one acre of Githi/Igano/147. she also suggested that in case of Githi/Muthambi/796 be given to Daniel Githaiga Mwaniki one acre, Clement Macharia Mwaniki one acre and herself 0. 5 acre. The matter proceeded by way of viva voce evidence. From the evidence adduced it was clear that the grandson mentioned by the protestor was deceased. That was proved by a letter from the office of the Assistance Chief of Mweru sub location. The protestor added the name of Daniel Githaiga amongst the people to benefit from the property. The co-administrator however said that Daniel Githaiga had obtained the share of the estate prior to the confirmation. This was not denied by the protestor. Having not been denied Daniel Githaiga is not entitled to the present estate. In my view the just decision and indeed of this court is that the affidavit of protest filed in this court on 1st May 2008 by Esther Muthoni Mwaniki is hereby dismissed. The court does hereby confirm the grant as prayed in the summons dated 25th April 2008. There shall be no orders as to costs
Dated and delivered at Nyeri this 22nd day of October 2008.
MARY KASANGO
JUDGE